Issue Updates

Title: CEMEX-TRANSIT MIXED SOLEDAD CANYON SAND AND GRAVEL PROJECT, LOS ANGELES COUNTY, CA

Summary: This briefing provides information and status on the Soledad Canyon Sand and Gravel Project (CEMEX-Transit Mixed Concrete, Inc.) in Los Angeles County. The BLM approved the project with mitigating measures on August 1, 2000, and the Interior Board of Land Appeals affirmed that decision on January 8, 2002. The issue is now in litigation.

Issues: In 1990 BLM awarded Transit Mixed Concrete (TMC) a competitive contract to mine 56 million tons of sand and gravel over a 20-year period on split estate lands near Los Angeles for a minimum payment of $28 million. The contract site is located in Soledad Canyon off Highway 14, 25 miles north of downtown Los Angeles. The area has been used for aggregate mining since the early 1960s and was classified by the state in 1987 as a "regionally significant construction aggregate resource area." The project involves a plant to produce and deliver ready-mixed concrete to the local market. The project will involve 300 to 500 jobs in the county and plus supply aggregate for the rapidly growing metropolitan area.

BLM currently holds a bid deposit of $700,000 and performance and reclamation bonds totaling $3.5 million. The project site is on split estate lands (i.e. the surface is private and the subsurface minerals are reserved to the federal government). BLM is responsible for approving a mining plan of operations on the project and the county is responsible for ensuring TMC compliance with the California Surface Mining Reclamation Act (SMARA). The county was the lead agency for preparation of a state environmental impact report (EIR), while BLM prepared the federal environmental impact statement (EIS). A draft EIS was released 5/6/99. Public concerns were raised about air quality, health, truck traffic, dust, and effects on property values to nearby residents.

Subsequently, BLM prepared a supplement to the draft EIS, focusing on air quality issues and the company's recent proposal to transport mine material by conveyor belt rather than open trucks as originally proposed. Incorporating public comments received, the final EIS was published on 6/2/00, analyzing eight alternatives ranging from the original plan of operations proposed by the company to a no-action alternative.

BLM's Record of Decision, signed 8/1/00 approved the agency preferred alternative identified in the final EIS called the "reduced north fines storage area alternative," which includes additional mitigation measures, such as a conveyor belt system and a reconfiguration of the project to further reduce air quality impacts. Twenty two appeals to the Department of the Interior Board of Land Appeals (IBLA) were filed, with three requesting stays. No stays were granted. IBLA, at BLM's request, expedited review of the appeals. Based upon new evidence of the presence of the newly listed endangered arroyo toad, BLM announced in early July 2001, that it was reinitiating consultation with the FWS on the project as it pertains to the arroyo toad. FWS responded with a "no jeopardy" biological opinion in October 2001. However, BLM is requiring the company to comply with the additional mitigation measures identified in the opinion to ensure compliance with the Endangered Species Act. In a final ruling dated January 8, 2002, the IBLA affirmed BLM's August 2000 decision on all counts. IBLA advised BLM to review issues with the FWS regarding the endangered arroyo. That consultation has occurred and appropriate mitigation measures identified. The August 2000 decision represents the final decision of the DOI on this project.

In Los Angeles County's separate review process, the county's planning staff, in April 1999, recommended approval of the proposed TMC project. However, in December 1999, the planning commission voted 5-0 to deny the proposed mining project. The company appealed the commission's decision to the Los Angeles Board of Supervisors. The final EIR was released in April 2001. The county postponed action on this matter five times. On April 24, 2001, the board directed the county planning department staff to explore further mitigation measures proposed by the city of Santa Clarita. The staff issued its recommendations November 5, 2001. BLM-California issued a strong letter objecting to a number of the staff recommendations as unreasonable and unprecedented regulatory requirements. On November 27, 2001, citing a need for more traffic studies, the county board of supervisors postponed a hearing on the matter to January 22, 2002, and subsequently postponed again until February 26, 2002. On February 26 2002, the board voted its intent, by a vote of 5-0, to deny the company's application for a SMARA permit and followed up April 23, 2002, with a formal denial.

Several contract issues involving the former sand and gravel operator(Curtis Sand and Gravel, which competed for the contract, but was not the high bidder) have been litigated, and the courts have found in BLM's favor. The city of Santa Clarita filed suit in federal court challenging the decision, alleging violations of both the Endangered Species Act and the National Environmental Policy Act. That suit was settled but the city again filed suit on the Endangered Species Act on January 24, 2002, and that case is still pending. On January 15, 2002, the Center for Biological Diversity filed a lawsuit in U.S. District Court stating U.S. Fish and Wildlife Service failed to designate "critical habitats" for the threespine stickleback along the Santa Clarita River in accordance with the Endangered Species Act and that suit is still pending.

CEMEX filed suit against the county on January 22, 2002, in federal District Court, Central District, Los Angeles, alleging interference and frustration of a federal project; an amended complaint seeking damages regarding the denial was filed May 9, 2002. The county filed motions to have the suit dismissed or deferred to state courts, but both were denied by U.S. District Judge Dickran Tevrizian on July 29, 2002. Judge Tevrizian also earlier denied motions by the City of Santa Clarita to intervene in the suit. The city appealed to the Ninth Circuit Court and the Court is considering that request.

CEMEX also appealed the denial to the state Mining and Geology Board on May 8, 2002. The board ruled that while it "preempted from reviewing the appeal" due to the fact the matter was in court, it also had determined that "the public record demonstrates delay and indecision by [the county] in its processing of the surface mining application. The county's conduct in this area is surprising given the surface mining infrastructure already developed and surface mining history of the mineral lands in question, and given the state, and the county through its mineral resource management policies incorporated into its general plan, sought since 15 years ago to protect these identified important mineral resources from permanent loss due to encroaching urbanization."

On July 8, 2002, the U.S. Department of Justice filed a motion on behalf of the Department of the Interior and BLM to intervene in the lawsuit against Los Angeles County in U.S. District Court, Central District, California. The filing is based on the legal doctrine of "preemption" under the Supremacy Clause of the U.S. Constitution, which basically means that the county, while it can require reasonable mitigation measures for a federally approved project, does not have authority to unreasonably delay or deny the project. The motion was originally denied without prejudice due to timeliness, but refiled August 6, 2002. The federal government was granted intervenor status on September 9, 2002. Court-ordered mediation between the plaintiffs and defendants is underway.

Political interest locally has been high. Rep. Buck McKeon, a former mayor of the City of Santa Clarita, opposes the project. He introduced legislation (HR 3529) on 11/19/03 called the Soledad Canyon Mine Lease Cancellation Act. Sen. Barbara Boxer has announced her intention to introduce legislation in opposition as well. The Department and BLM have taken no position on those proposals.

Status: The U.S. was granted intervenor status in the lawsuit against Los Angeles County on the basis of federal "preemption" and asserting Los Angeles County has unreasonably delayed and then denied the federal project.