Mine Kampf

Photo by James BunoanOpen space is increasingly rare in Orange County, but even so, Fieldstone Homes' plans for the city of Orange seem improbable. The Newport Beach-based homebuilder has asked city officials for permission to build 180 houses in the path of a creek in an area state documents show is a flood zone. Weirder still, the city may agree.

Now, Fieldstone faces a third hurdle. State officials say they have evidence the city of Orange failed to create and follow through on a plan to clean up the site, which served for decades as a gravel mine.

Located between Santiago Oaks Park and Katella Avenue in Orange, the old 100-acre Sully-Miller sand- and gravel-mining site is fast becoming one of that city's most contentious pieces of real estate.

State conservation officials say the Surface Mining and Reclamation Act (SMARA) requires local governments to plan for the eventual environmental restoration of mining sites within their boundaries.

“We've found no evidence at all that the city of Orange enforced SMARA on this site,” said Don Drysdale, spokesman for the California Department of Conservation (DOC). “We will most likely be sending a letter to the city formally requesting a reclamation and cost plan. If they don't, there are sanctions . . . but I'm sure they want to get this cleared up.”

Maybe so. But city officials have so far refused to comment on how SMARA might affect the Sully-Miller development plans. “All I can say right now is that our city attorney's office is looking into that to see if it is applicable to the property,” said Alice Angus, Orange's community development director.

SMARA is a fascinating but obscure state law whose history suggests the power of California's mining industry. Dating back to the heady, progressive Governor Jerry Brown days of 1975, it has two functions: in a concession to mining interests, it identifies mineral deposits statewide and protects them from development; but, more important, it requires all active mining companies to submit a site-reclamation plan to their city officials. Owners of any mine active when the act passed had 12 years to submit a plan.

“Proper reclamation of surface mines is essential to protecting the environment and public health,” wrote Corey Brown, general counsel for the Sacramento-based Planning and Conservation League in 1986. “Proper reclamation also reduces geo-hazards, erosion, sedimentation of streams, degredation [sic] of water quality, and loss of fish and wildlife habitat.”

Shirley Grindle, a former Orange County planning commissioner who worked on sand- and gravel-mining reclamation issues back in the early 1970s, considers the law incredibly important. “Mining companies used to just walk away and leave huge holes in the ground,” she said. “Because of SMARA, they can't do that anymore.”

It was Grindle who first put the DOC and the city of Orange on notice concerning SMARA's applicability to the Sully-Miller site. While researching Fieldstone's proposal for the Sully-Miller site, Grindle could find no evidence the company ever submitted a reclamation plan. On Nov. 13, she and four other residents who live near the site requested a copy of any reclamation plan. City officials had yet to reply at press time.

Ironically, correspondence the foursome did obtain through the California Public Records Act show state officials should have discovered Orange's noncompliance back in 1998, when DOC officials asked Orange if the city was dealing with any SMARA issues. On Aug. 19, 1998, Orange City Attorney David A. De Berry wrote that his office had concluded SMARA didn't apply to them since “there are currently no surface mining operations in the city.”

Three weeks later, DOC Executive Officer John G. Parrish wrote that “based on these facts,” the city didn't have to worry about SMARA since the act “applies only to an active surface mining situation.”

But De Berry was wrong. Sully-Miller was indeed active when the act was passed in 1975, so under the 12-year stipulation, the company had until 1987 to submit a reclamation plan.

Considering the appalling condition of the DOC during the mid-1980s, even if Sully-Miller had submitted a plan, it's doubtful anything would have come of it. In 1986, Planning and Conversation League general counsel Brown wrote a scathing study titled “Investigative Report on the Department of Conservation's Mismanagement of the Implementation of the Surface Mining and Reclamation Act of 1975.” Brown explained that then-Republican Governor George Deukmejian systematically gutted the DOC. At that time, the DOC wasn't even considered a regulatory office—its sole power was reviewing reclamation plans. But to the mining industry, even this provision was draconian.

In September 1983, less than a year into his first term, Deukmejian installed Don Blubaugh—a past president of the California Mining Association and one of the mining companies' best lobbyists—as DOC director. “He brought a clear pro-industry viewpoint to the department,” wrote Brown.

That was an understatement. Blubaugh immediately fired nearly all the department's environmental and technical specialists. Within two years, the DOC lacked the expertise to understand, much less comment on, complex environmental reclamation plans. The agency all but stopped reviewing reclamation plans entirely. In the words of one local official outraged at the agency's decay, Blubaugh had “put the screws on” his own technical people.

At the same time, Blubaugh increasingly ordered DOC resources directed to discovering mineral deposits for the mining industry. A great deal of DOC funding ended up identifying minerals in state and regional parks—areas where mining, at least today, is illegal.

Drysdale says the DOC has changed since then and now holds real enforcement powers. But he also admitted his agency had fallen down where Sully-Miller was concerned.

“This seems to be a situation where it kind of slipped through the cracks,” Drysdale said. “Unfortunately, we rely on local agencies for this. And there aren't a lot of mines in that area. We honestly don't get a lot of calls on mining.”