December 2018

By Peter Jacklin

Ken Barker walked into the room waving several photos. He proclaimed that what he had was undeniable proof that the Sully-Miller surface mining operation was closed, and had been closed since 1975. What he held in his hand were aerial photos of the property that were taken from 1928 to 1999. The photos showed that mining operations occurred only before 1975, according to Barker. It was now 2003. The photos were 25 years old.

Dave DeBerry, the Orange city attorney at the time, pounced on this as a hungry cat would upon a mouse. This was exactly what was needed to nullify the State Mining and Reclamation Act (SMARA) that was hindering the Fieldstone project from being built on the property. The act demanded that a well-defined reclamation plan must be submitted to, and approved by, a lead agency for any mine operating after Jan. 1, 1976. At that time, the assumption was that surface mining had occurred on the site beyond that date. Reclamation is costly, obstructing and time-consuming. The City of Orange was the lead agency. No reclamation plan had been produced for the property. The white knight had arrived! 

Why were the Barker photos needed? The indisputable answer is that the lead agency had no indisputable records of the mining operations. The lead agency had failed to secure a reclamation plan for the site. The act allowed a 12-year window to submit the plan. The City of Orange had violated state law indisputably.

Long arm of the law
Two months before Barker’s day-saving entrance, the California Office of Mining Reclamation (OMR) had notified the Orange director of community development that the operator of the mining operation, Hanson Aggregates, was in violation of SMARA – specifically, reclamation plans, financial assurances and local permits to mine. The state made that conclusion on the basis of aerial photographs different from Barker’s. The state advised that the city was the lead agency, and ordered that Hanson place matters in line with state law – causing a heavy burden on the mining operator. “You [the City of Orange] are required to demonstrate a proposed course of action as to how the city intends to comply in a timely manner,” the OMR demanded. Barker had removed that burden. The City of Orange could ignore the demand. It was out of the penalty box.

Several residents and the Santiago Greenbelt Alliance were dissatisfied with DeBerry’s decision, and appealed to the OMR using a third set of aerial photographs to prove their case. The OMR, in July 2003, held firmly to its decision favoring DeBerry and Hanson. Included with its position, the OMR stated that, “the City of Orange is best able to make the needed factual determinations as to what did or did not occur on this site over the years in question.” DeBerry demurred, arguing that “the city is in no better position to determine whether mining activities subject to SMARA occurred on this site. The city does not possess OMR’s expertise or familiarity with SMARA requirements.” During the last 15 years the city has ignored OMR’s direction to make factual determinations.

DeBerry has since exited. Fieldstone no longer develops in the city; Milan Capital is the landowner. According to the state, it is now the lead agency for mining operations on the property because the city has no mining ordinances. While these things have changed, the city’s opinion that the mining operation closed in 1975 has not - and no one in city government seems interested in changing it. The same motivations that existed in 2003 remain in 2018 – development is being proposed for the property for the second time by Milan Capital.

Who’s on first?
Opinions that the mining operation continued after 1975 abound and are backed up by legal documents. In 1989, a City Council Resolution that approved 30 houses on The Reserve stated that, “Sully-Miller Contracting has stated that they have no plans to terminate their use, and that future residents should be so advised.” In 2014 the DEIR for Milan’s failed Rio Santiago proposal stated that mining operations continued on the property until 1996.

Why is this important? A SMARA reclamation plan is needed to restore mined property to a safe condition that prepares it for alternate land uses, encourages the production and conservation of minerals, while protecting wildlife. Several criteria have to be met, including financial assistance that amounts to forfeitable bond, should the plan be abandoned.

Without the reclamation plan, how can buyers know that the land can support residential housing? How can future homebuyers know that their investment is safe? Family fortunes are at stake.

The property is overseen by an alphabet soup of state, federal and county organizations – the Environmental Protection Agency, the Department of Toxic Substances, the State Water Resources Board, the Army Corps of Engineers, to name a few. Each operates independently of the other, with no common goal. The fate of the property lies in the hands of city staff, who admit they have no knowledge of the complex laws that govern this property, a developer who will make every effort to avoid complex laws, and the distant and removed bureaucrats charged with the protection of the environment.

Blind eye
Even though this property is not zoned residential right now, it can be, without any rehabilitation being made prior to the zone change. It falls upon the developer to identify the regulatory bodies and to gain their approvals after the zoning change is approved. The city provides minimal oversight and direction. The city fell short when it failed as the lead agency on the mining operation and did not maintain adequate records. The city fell mightily short again in 2003 when it accepted suspicious and unauthenticated aerial photos to avoid costly and time-consuming actions required of Hanson Aggregates and Fieldstone. 

The Trails at Santiago Creek is working its way through the city’s approval process. It faces the same challenges that the Fieldstone project and Rio Santiago faced. The latter was turned down by the city council two years ago. Nothing has changed on the site in the interim. Consistency of process should lead one to believe that the Trails project will be rejected for the same reasons. Of course, there is the tangled web of missing documents, state law violations, uninformed oversight, a remote bureaucracy, a landowner with his back against the wall, inconvenient truths and the temptations to accept any scheme that moves the project along. One can hope that 2019 will not prove to be a repeat of the city’s earlier flaunting of state and federal laws. 

Guest Commentary:

The Mystery of Sully’s mine