Continued
In
1997, Baxman was granted "vested rights" to mine the land,
which he bought in 1977 from the Galliani family. After proving that
he had been mining Ten Mile since the 1950s, Baxman was "grandfathered
in," allowing his company to continue doing what it had been
doing for 50 years.
"There's
no way they would be approved today," said John Speka, a surface
mining planner with the Department of Planning and Building. "The
ecological part of this is all out of whack, and their reclamation
is non-existent," he said, describing Baxman's "reclamation
plan," or its blueprint to return the mine to its natural state.
"The wind blows and replaces the sand. It's 'self-reclaiming.'"
If
that's so, how did Baxman get vested rights to the property?
It
all started in 1993, when the California Office of Mine Reclamation
discovered Baxman's operation and said it was subject to the California
Surface Mining and Reclamation Act, or SMARA, which was created in
1975 to regulate mines.
Before
then, Baxman had operated under the radar, according to County records.
Planning and Building said that the company had never applied for
a use permit - as is required by law - and was never fined for its
nearly two-decade indiscretion. Baxman disputes this, saying that
he followed all the rules. "The County knew what we were doing
the whole time," he said. "We had talked to them, we had
virtually all the permits that were required at the time."
In
a letter from Baxman to the County, the gravel company said it should
be exempt from State and County restrictions, since its mining "was
of an infrequent nature" and "involved only minor surface
disturbances." When the Department of Conservation said that
claim was bogus, Baxman applied for vested rights with the County
and with the California Coastal Commission.
Over
the next several years, dozens of letters connected Baxman with an
ever-widening maze of State, County and local bureaucracies. The Planning
and Building Department, the Coastal Commission, the Department of
Conservation, the Department of Fish and Game, the Mendocino County
Water Agency and the Department of Parks and Recreation are just a
few names in the alphabet soup that engulfed the vested use process.
Baxman, for its part, unearthed 50-year-old receipts to prove that
it had been mining at Ten Mile for as long as it said it had. And
mine supporters submitted letters of recommendation.
A
letter from Caltrans, one of Baxman's biggest customers, said that,
"The drifting sand [from the dunes] has the potential to encroach
onto portions of the roadway. Conceivably, during extreme weather
conditions, the sand could completely block the traveled way causing
severe inconvenience and expense to the public."
In
1996, the Coastal Commission rejected Baxman's application for vested
rights, saying it was incomplete. Shortly after, so did Planning and
Building. Because Baxman had never obtained a permit to mine at Ten
Mile, it was "in violation of county ordinances," a department
letter to Baxman said.
In
the meantime, nearly every government agency involved had become "concerned"
about the mine, according to a letter from Planning and Building.
Renee Pasquinelli, a senior resource ecologist with State Parks, said
that questioning the wisdom of Baxman's mining practices "was
like opening a hornet's nest."
She
suggested that Baxman hire dune experts to assess not only the mine's
environmental impact on the dunes, but on the Inglenook Fen - an even
more rare and fragile ecosystem a mile north of the dunes.
So
far, Baxman has refused. "We aren't bothering the dunes,"
he said.
But
Pasquinelli says that if the dunes were "destabilized" by
the mining, there's a good chance the Caltrans prophecy could come
true: If enough sand was taken, she says, the dunes' "eastward
movement" could be accelerated. And that means the sand could,
conceivably, blanket Highway One.
Other
"concerns" were voiced by the Department of Fish and Game,
the Department of Conservation and the local water agency, according
to a letter from Building and Planning. Sensitive plant species hadn't
been considered, the letter said, and there was no end in sight for
the mining operation.
A
few residents were teed off as well.
"Baxman
Gravel Inc. should not have a right to mine 10,000 yards per year
from the sand dunes," one letter in County records read (the
name on the letter was illegible). "Sand dunes are very fragile
ecosystems, and one has only to look to southern California to Pismo
and Morrow Bay to see the result of intrusion which began with only
minimal incurance. Those dune fields are now all but destroyed. We
do not need to make the same mistakes with this marvelous area to
satisfy the monetary gain."
Despite
the concerns, Baxman appealed to the Planning Commission. And, against
the recommendation of staff at Planning and Building, the Commission
unanimously approved the application.
The
company continued operations without an environmental study, and without
a substantial reclamation plan. After the permit was approved - and
the rec plan was submitted - the folks at the Department of Conservation
told the County that Baxman's plan was hardly up to snuff. That is,
the department said the rec plan met neither the "minimum requirements"
of SMARA nor the State Mining and Geology Board.
Baxman
has still not submitted a rec plan that meets those requirements.
And neither the County nor the State has held the company accountable.
The only reclamation plan the County has on file say this: "Since
the operator is not changing the existing topography of the property,
and no vegetation grows on the sand, no extensive reclamation would
be required."
"I
think that there should have been some restrictions locally,"
says Steve Heckeroth, a global warming and peak oil activist, and
one of the planning commissioners who approved Baxman's vested rights.
Even so, Heckeroth says, if he were faced with the same decision today,
he would approve the permit. Conserving fossil fuels - and not having
to haul the sand in from another County - takes precedent over preserving
the dunes, he says.
Though
Baxman applied with both the Coastal Commission and the Planning Department
for vested rights, it's unclear whether or not the company needed
approval from both agencies to continue its operations. The Coastal
Commission couldn't comment in time for this article, but the last
correspondence in County records between the Coastal Commission and
Baxman was about a month after the County approved Baxman's vested
rights, on January 7, 1998.
The
letter, from Jo Ginsberg, who's now with the Coastal Commission's
enforcement division and couldn't comment on this case, says that
even though the Planning Commission approved Baxman's vested rights,
the company still needed approval from the Coastal Commission. A letter
from Frank Zotter Jr., Mendocino County Counsel, echoed this in a
letter to Building and Planning. "If Baxman did not receive approval
from both the Coastal Commission and the County," he wrote, "Baxman
would not have a vested right."
But
after the January 1998 letter, the Coastal Commission seems to have
fallen off the map. And Baxman, of course, has kept on mining at Ten
Mile.
Planning
and Building, meanwhile, doesn't seem eager to reopen the hornet's
nest. "If there was environmental degradation we could do something,"
said Frank Lynch, a senior planner with Planning and Building. "But
I don't know. I haven't gone down that path."
