Opinion
C067581
05-21-2012
CLIFTON H. MCMILLAN, III et al., Plaintiffs and Appellants, v. COUNTY OF SISKIYOU, Defendant and Respondent.
NOT TO BE PUBLISHED
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
(Super. Ct. No. SCSCCVPT081404)
Butte Creek Minerals, Ltd. (BCM) and its owner Clifton McMillan (McMillan) challenge the Order to Comply (Order) issued by the Siskiyou County Planning Department (the Department) with respect to a surface mining operation. The Order cites violations of both state mining law and the conditions of the use permit, and requires certain actions with 30 days.
BCM and McMillan contend that they have a vested right to mine that, under the diminishing asset doctrine, extends to the entire property, not just the portion previously mined. They argue that because the mine is vested, no use permit is required (although they obtained a use permit), thus they need not comply with the conditions of the use permit, some of which are cited in the Order.
The trial court denied plaintiffs' petition for a writ of mandate to vacate the Order and to remand for a vesting determination; plaintiffs appealed.
As we will explain, although under Public Resources Code section 2776, one "who has obtained a vested right to conduct surface mining operations prior to January 1, 1976" is exempt from the permit requirement, in this case no one obtained a vested right. The corporation that mined before 1976 did not assert a vested right, but instead obtained a use permit, which was renewed three times. Nor can plaintiffs properly claim a vested right based on the conduct of a predecessor corporation. Accordingly, we shall affirm.
FACTUAL AND PROCEDURAL BACKGROUND
I
The Mine
The property at issue is known as the Timberhitch Quarry or Timberhitch Pit and is located in the Butte Valley in eastern Siskiyou County. The property consists of about 1700 acres. The Timberhitch Quarry has two separate open-pit quarries within one-quarter mile of each other. The western pit was mined before 1976 and has mostly been reclaimed for agricultural uses. More recent mining has occurred in the eastern pit, which is about 20 acres in size and six to eight-feet deep.
McMillan acquired the property in 1967. He established a corporation, Timberhitch, Inc., and transferred the property to it. Timberhitch mined the property for sand, gravel and rock.
In 1971, Timberhitch entered into a Land Conservation Contract (a Williamson Act contract) with Siskiyou County (the County). A second contract was executed the following year, adding additional land. In the County, surface mining was considered a compatible use with agricultural preservation and not subject to a use permit.
The Williamson Act, Government Code section 52100 et seq., authorizes contracts between local government and local landowners to preserve agricultural land by restricting use to agriculture or compatible uses in exchange for reduced property taxes. (DeVita v. County of Napa (1995) 9 Cal.4th 763, 791.)
In 1989, McMillan partnered with Theodore Thom, M.D., who held title to the land as security for his investment. In 2003, McMillan established a new corporation for the mining business, BCM, and Thom deeded the mineral rights of the property to BCM. Eventually, in May 2006, the Williamson brothers (Jack and Jim) acquired the surface rights to the property.
McMillan and his wife own all the stock in BCM.
II
Regulation of Mining Activity
In the mid-1970's, the government began regulating surface mining. In 1974, the Siskiyou County Board of Supervisors adopted an ordinance that required a use permit for mining. (Siskiyou Ord. No. 623, adding § 10-6.1502, subd. (d) to Siskiyou County Code (SCC).)
In its answer to the petition, the County asserts that a use permit was required for surface mining since 1958. It argues that since no use permit was obtained until 1979, mining at Timberhitch Quarry was not legal and therefore no vested rights arose. At the hearing before the Board of Supervisors, however, the County stated no use permit was required before 1974.
The next year, the Legislature enacted the Surface Mining and Reclamation Act (SMARA) (Pub. Resources Code, § 2770 et seq.). SMARA requires that every surface mining operation have a permit, a reclamation plan, and financial assurances to implement the planned reclamation. (Pub. Resources Code, § 2770, subd. (a).) Those with a vested right to conduct surface mining prior to 1976 are exempt from the permit requirement. (Pub. Resources Code, § 2776, subd. (a).) Regardless of vested status, all operations conducted after January 1, 1976, require a reclamation plan. (Pub. Resources Code, subd. (b).)
In response to SMARA, the Siskiyou County Board of Supervisors adopted chapter 5 of Title 10 of the SCC (SCC), entitled "Surface Mining and Reclamation." (SCC, § 10-5.101 et seq.) "The purpose of this chapter is to implement and supplement" SMARA. (SCC, § 10-5.101, subd. (a).))
In 1979, the Siskiyou County Planning Commission (Planning Commission) issued Timberhitch a five-year, renewable use permit, UP-31-79, to operate three gravel excavation sites. A reclamation plan was a condition of the permit and no bond was required. The permit noted its automatic termination if not used for the stated purpose for a period in excess of one year. The use permit was renewed in 1984 and 1989. The renewals required a $10,000 security bond and public liability and property damage insurance in the amount of $500,000.
In 1990, the Department wrote McMillan requesting the certificate of insurance and performance bond. In response, McMillan questioned the County's right to impose subsequent conditions on mining sites that were in existence before the requirement of a use permit was imposed. When McMillan provided a certificate of insurance, the Department wrote him that it did not meet the County's requirements. Timberhitch's corporate powers were suspended in 1990 for failure to file the annual information statement and pay taxes.
The record does not show that McMillan ever satisfied the insurance requirement.
It is not clear from the record who, if anyone, conducted surface mining operations at the Timberhitch Quarry after Timberhitch's corporate powers were suspended and until BCM acquired the mineral rights. The record does not show that Timberhitch's corporate powers were ever revived.
A new use permit, UP-79-31, was approved in 1993, but not issued to Timberhitch until 1998. This permit required security of $2,600, insurance in the amount of $500,000, and submission of a Hazardous Materials Business Plan. Just prior to issuance of the use permit, the County Department of Public Health wrote the Department that it had not received a Hazardous Materials Business Plan. A site visit indicated the mine was not operating, but if it recommenced operation, the plan would be required if the site contained specified amounts of solid, liquid or gas, or if it generated any waste.
The mine was inspected in 2003, 2004, and 2005. The inspection reports note the mine appeared to have been idle since 2002 and the site remained compliant with the use permit and the reclamation plan. The quarried area was stable. Although the site had not been reclaimed, considerable vegetation had established itself naturally.
The status of the mine as compliant changed in 2006. At the request of the Williamson brothers, the new owners of the surface rights of the property, an inspection was conducted in August 2006. At this inspection, several violations were noted, including the presence of hazardous material. The 2006 inspection found the site was not in compliance with the use permit. The financial assurances were inadequate to complete reclamation of the quarry site. The mine had been idle since 2002; no reclamation had been conducted and about 23 acres remained disturbed and contained inoperative equipment and junk materials. An interim management plan (IMP) was requested for the idle mine. A draft IMP had been submitted, but it was returned for revisions. An updated Financial Assurance Cost Estimate (FACE) and proof of insurance were also requested; the operator indicated he was unwilling to provide them. If the requested documents were not received, a public hearing would be set for revocation of the use permit.
SMARA requires an interim management plan within 90 days of a surface mining operation's becoming idle. "The interim management plan shall provide measures the operator will implement to maintain the site in compliance with this chapter, including, but not limited to, all permit conditions." (Pub. Resources Code, § 2770, subd. (h)(1).)
After this inspection, there was a meeting between the Department and McMillan about the deficiencies at the site and considerable correspondence. The Williamson family also wrote the County about what they perceived as problems; they were particularly concerned about hazardous material on the property and the lack of insurance. The Department sent McMillan notice of the problems and the steps he needed to take.
McMillan submitted a draft IMP in November of 2006 and a revised draft in April 2007. In November 2007, the Department rejected McMillan's draft IMP, requiring significant revisions, including obtaining liability insurance in the amount of $500,000 and providing a FACE for areas disturbed after 1976. In addition, the Department of Public Health required a Hazardous Material Business Plan.
The State soon became involved. The Office of Mine Reclamation (OMR) in the Department of Conservation threatened to remove the mine from the list of approved mines (the AB 3098 list) if a revised FACE was not submitted. The OMR inspected the mine in July 2007. A few weeks later, the OMR sent the Department a 15-day SMARA enforcement notice. The notice set forth the SMARA violations at the mine, which included the need for an amended reclamation plan, adjusted financial assurances, and an IMP. Unless the County took appropriate actions to remedy the violations, the Department of Conservation would step in to enforce SMARA. In September of 2007, the OMR removed the mine from the AB 3098 list.
SMARA provides for "home rule," with the local lead agency, usually the city or county, having primary responsibility for enforcing SMARA against mine operators. (Pub. Resources Code, §§ 2774.1, subd. (f)(1); 2728.) Despite "home rule," the Director of the State Department of Conservation may get involved in enforcement of SMARA after he has notified the lead agency of a violation and the lead agency fails to take action within 15 days, or the Director determines the violation amounts to "an imminent and substantial endangerment to the public health or safety, or to the environment." (Pub. Resources Code, § 2774.1, subd. (f)(1).)
III
The Order to Comply
These regulatory actions lead to the Department issuing an Order on August 21, 2007. This order is the subject of this appeal. The order stated that the Timberhitch Quarry was in violation of SMARA as well as the conditions of the use permit. The order directed BCM to provide, within 30 days, an updated reclamation plan, an IMP, an updated FACE, a Hazardous Materials Business Plan, and proof of liability insurance in the amount of $500,000. The draft IMP that had been submitted was inadequate due to the failure to include a Hazardous Materials Business Plan, proof of $500,000 of liability insurance, and an updated FACE.
The Planning Commission held a public hearing to consider affirming the Notice to Comply. McMillan appeared as CFO of BCM. He argued that the information he had provided, including the Williamson Act contracts covering the land, established that he had a vested right to mine. He claimed that with a vested right that arose before 1976, he did not need a use permit. He noted that a list of mines in Siskiyou County showed no vested mines. He argued no one wanted to recognize vested rights.
The hearing was continued. A supplemental staff report stated that even though mining, or natural resource development, was permitted in agricultural areas of Siskiyou County under the Williamson Act, a use permit was still required to mine. A use permit was not required only for mines in production prior to 1974, as those mines were vested. In the case of Timberhitch Quarry, however, because the boundaries of the mining had expanded, a use permit was required.
A tape recording of the continued hearing was not available due to "technical difficulties." Facts from that hearing are taken from the minutes.
At the continued hearing, McMillan continued to argue he had a vested right to mine the entire property, asserting "you go where the gravel is." He argued that since the County had rejected his IMP after the 60-day deadline for action, it was valid.
County Counsel noted that, had the mine been idle for five years, that fact would be substantial in determining whether the mine was still in use. He stated the provisions of the Williamson Act were not planning issues; before the Planning Commission was only the issue of whether the mine conformed to mining regulations and the conditions of the use permit.
The chairman noted a key issue was whether vested rights were lost because the mine was idle. He said staff faced the issue of establishing the area of vested rights.
The Planning Commission unanimously affirmed the Order.
IV
Appeal to the Board of Supervisors
BCM appealed to the County Board of Supervisors. BCM appointed McMillan as its agent in the appeal.
At that hearing, McMillan reiterated his position that a vested miner was not required to have a permit. He noted that on a spreadsheet of mines in Siskiyou County, not one mine was listed as vested, although there was much mining activity before 1976. A member of the planning staff indicated there were five or six vested mines in the county. Staff indicated that any land disturbed after 1976 had to be reclaimed, even if that land had been disturbed before 1976. McMillan noted his argument was "totally misunderstood." He knew that every mine was subject to a reclamation plan, financial assurance, and an IMP. He was arguing that as a vested miner he did not have to have a use permit.
Staff argued that "we can only conclude" a determination was made at the time McMillan obtained the use permit and McMillan accepted the requirements and conditions. McMillan responded he relied on the Department to tell him what was required. "But implied consent is not achieved by something that I was hornswaggled or duped into accepting." McMillan requested a forum to determine vesting.
The supervisors decided they needed additional information on vested rights and the chain of title. The hearing was continued for a month.
Staff responded in writing to the supervisors' questions. As to vesting, staff reported that McMillan had refused to submit a map or legal description of the area disturbed before 1976. The use permit appeared to limit mining to 20 acres and McMillan had no evidence that he could mine all 1700 plus acres. The County had not made a vesting determination since McMillan had not provided information to substantiate a vested right. McMillan had not challenged the requirement of a use permit in 1979; he participated in two of the three five-year reviews. Staff concluded the use permit and its conditions were valid.
At the continued hearing, staff stated vesting was important to determine the areas requiring reclamation. There had been no five-year review of the use permit since 1993. A conservative estimate was that it would cost $13,000 for reclamation.
McMillan again claimed he had the right to mine the entire acreage.
By a vote of four to one, the Board of Supervisors denied the appeal.
V
Petition for Writ of Mandate
BCM and McMillan petitioned for a writ of mandate and declaratory relief, contending the County abused its discretion and failed to proceed in the manner required by law by (1) failing to define vested rights; (2) failing to give effect to vested rights; (3) upholding FACE demands; (4) upholding insurance demands when the County was statutorily immune from liability; (5) upholding IMP and reclamation demands; and (6) in finding McMillan was not a party to the Williamson Act contracts because he did not own the property when BCM owned the mineral rights. They sought remand for further proceedings.
The petition alleged that after the Board of Supervisors voted to uphold the Order, plaintiffs discovered a spreadsheet that listed the BCM mine as vested. They had requested this information before, but the spreadsheet they received was incomplete and did not identify Timberhitch Pit as vested.
The County answered, asserting numerous affirmative defenses, including lack of standing on the part of McMillan, failure to exhaust administrative remedies, statute of limitations, latches, failure to state a cause of action, and waiver of any claims of vesting.
The trial court granted in part petitioners' motion to supplement the administrative record. The court granted the motion as to, inter alia, the complete spreadsheet of mines in Siskiyou County, which noted a "v" for vesting next to the BCM mine. The motion was denied as to McMillan's declaration.
In its extensive statement of decision, the trial court first determined that McMillan lacked standing. Although the Order was directed to "Butte Creek Minerals, Inc. [sic] (Clifton McMillan)," it was speculative that McMillan would be personally liable for penalties or other costs of noncompliance. The court found McMillan failed to provide the Department with an adequate map to determine vesting, so BCM failed to establish a vested right. The court noted that a portion of Timberhitch could be vested, but it had not been determined.
The court exercised its independent judgment in deciding if BCM was a party to the Williamson Act contracts. It found the Williamson Act applied to BCM as the owner of the mineral rights. The Williamson Act contracts, however, provided no exemption from compliance with SMARA. The mine was not exempt from the requirements of a use permit, a reclamation plan, IMP, FACE, and liability insurance.
The court found that even if the full spreadsheet were to show that the mine were vested, other evidence supported the finding of no actual vesting determination; therefore, the absence of the full spreadsheet was not prejudicial.
The court denied the petition and the complaint for declaratory relief. The judgment, and the award of costs and litigation expenses, was against both BCM and McMillan.
DISCUSSION
I
Mootness
The County contends the issues raised by this appeal are moot. It asserts the Timberhitch Quarry has been idle since 2002 without an approved IMP, so the mine is considered abandoned under Public Resources Code section 2770, subdivision (h)(6) [mine that is idle for over one year without an IMP that is approved or under review is considered abandoned and reclamation must commence]. The County argues that BCM and McMillan have lost any right to conduct surface mining operations or secure a vesting determination.
Plaintiffs contend their failure to gain approval of the IMP is due to the County's insistence in including conditions of the use permit, the issue on appeal. Moreover, they contend "the case cannot possibly be moot" because the County refuses to consent to vacating the Order.
We agree with the plaintiffs on this point. Where there is an outstanding judgment against the appellant, the case is not moot. (Marina Point, Ltd. v. Wolfson (1982) 30 Cal.3d 721, 730; Green v. Superior Court (1974) 10 Cal.3d 616, 622.)
II
Standing
Plaintiffs further contend the trial court erred in determining that McMillan had no standing to bring the petition for a writ of mandate. They argue that he was named in the Order and McMillan is an operator of the mine.
Under SMARA, an operator is defined as: "Any person who is engaged in surface mining operations, himself, or who contracts with others to conduct such operations on his behalf, except a person who is engaged in surface mining operations as an employee with wages as his sole compensation." (Pub. Resources Code, § 2731.) BCM is listed as the mine operator in the inspection reports of 2004-2006. Timberhitch is listed as mine operator in 2003.
A petition for a writ of mandate may be filed by a "party beneficially interested." (Code Civ. Proc, § 1086.) "To establish a beneficial interest, the petitioner must show he or she has some special interest to be served or some particular right to be preserved or protected through issuance of the writ. [Citation.] Stated differently, the writ must be denied if the petitioner will gain no direct benefit from its issuance and suffer no direct detriment if it is denied. [Citation.] This standard is applicable to proceedings in administrative mandate . . ." (Waste Management of Alameda County, Inc. v. County of Alameda (2000) 79 Cal.App.4th 1223, 1232-1233 (Waste Management), disapproved on another ground in Save the Plastic Bag Coalition v. City of Manhattan Beach (2011) 52 Cal.4th 155.) The interest must be direct and substantial. (Waste Management, supra, 79 Cal.App.4th at p. 1233.)
The Order is directed to BCM. The parenthetical notation of McMillan appears to be only a contact reference. The 2006 inspection report lists BCM as the mine operator. As the trial court found, it is speculative that McMillan has any liability under the Order.
The petition alleged that under a contract renewed annually, McMillan is the assignee of BCM's mineral extraction rights under the mineral grant deed. In answering, the County denied this allegation based on lack of information. As an affirmative defense, the County alleged McMillan is not an owner or operator and thus does not have standing. The points and authorities in favor and in opposition to the petition are not included in the record, nor is a transcript of any oral argument. The County never responded to the allegation of an assignment of rights, and the issue was neither addressed by anyone in the administrative proceedings nor mentioned in the trial court's statement of decision.
If McMillan were the assignee of the extraction rights to Timberhitch Quarry, he would have standing to petition for a writ of mandate. (See Searles Valley Minerals Operations Inc. v. Ralph M. Parsons Service Co. (2011) 191 Cal.App.4th 1394, 1402 [assignee of claim has right to sue on it].) The record, however, does not show that McMillan ever proved his status as assignee. Tellingly, there is no mention of the assignment in the trial court's thorough 26-page statement of decision. "'A judgment or order of the lower court is presumed correct. All intendments and presumptions are indulged to support it on matters as to which the record is silent, and error must be affirmatively shown.' [Citation.]" (Denham v. Superior Court (1970) 2 Cal.3d 557, 564.) McMillan has failed to show the trial court erred in concluding that he lacked standing. "Lack of standing is a fatal jurisdictional defect that requires judgment against the plaintiff. [Citation.]" (Scott v. Thompson (2010) 184 Cal.App.4th 1506, 1510.)
However, although McMillan lacked standing, he is a proper party to this appeal. Any "party aggrieved" may appeal. (Code Civ. Proc, § 902.) "One is aggrieved when the judgment has an immediate, pecuniary, and substantial effect on his interests or rights. [Citation.]" (Shaw v. Hughes Aircraft Co. (2000) 83 Cal.App.4th 1336, 1342.) McMillan was clearly aggrieved and may appeal because the judgment, including the award of costs, despite the trial court's finding that he lacked standing, is against him personally, as well as BCM.
III
Vested Rights
Plaintiffs further contend they have a vested right to mine the entire property without a use permit because the property was mined before 1976. They argue the County must make a vesting determination before imposing the Order.
The County responds that the issue of vesting was not before the Board of Supervisors and is not at issue on appeal. It contends that the requirement of an updated reclamation plan and an updated FACE is not affected by whether there is a vested right. It asserts that nothing in the Order prevents plaintiffs from submitting the necessary documentation to obtain a vesting determination.
The County fails to acknowledge that some of the demands in the Order, such as the insurance requirement, are based solely on the conditions of the use permit. Plaintiffs argue that if the use permit was not required, there was no basis for requiring compliance with these conditions. McMillan clearly and repeatedly raised the issue of vesting as a defense to complying with the conditions of the use permit. Indeed, he first raised the issue in 1990, in response to the County's demand for proof of insurance. Because the issue of vested rights affects whether plaintiffs must comply with all the terms of the Order, we address the issue.
The nature and extent of vested rights to mine are set forth in SMARA, the SCC, and case law. We discuss each in turn.
SMARA requires that the entity conducting surface mining operations have a permit, an approved reclamation plan, and approved financial assurances for reclamation. (Pub. Resources Code, § 2770, subd. (a).) However, "No person who has obtained a vested right to conduct surface mining operations prior to January 1, 1976, shall be required to secure a permit pursuant to this chapter as long as the vested right continues and as long as no substantial changes are made in the operation except in accordance with this chapter. A person shall be deemed to have vested rights if, prior to January 1, 1976, the person has, in good faith and in reliance upon a permit or other authorization, if the permit or other authorization was required, diligently commenced surface mining operations and incurred substantial liabilities for work and materials necessary for the surface mining operations." (Pub. Resources Code, § 2776, subd. (a).)
This statute also addresses a second aspect of vesting--the requirement of reclamation. "Nothing in this chapter shall be construed as requiring the filing of a reclamation plan for, or the reclamation of, mined lands on which surface mining operations were conducted prior to January 1, 1976." (Pub. Resources Code, § 2776, subd. (c).)
As we discuss in Part IV of the Discussion, post, throughout these proceedings the County viewed the issue of vesting only in terms of the reclamation requirement.
The SCC contains an identical definition of vested rights. (SCC, § 10-5.103, subd. (w).) If a vested right to conduct surface mining operations is obtained before January 1, 1976, no use permit is required "as long as the vested right continues and as long as no substantial changes are made in the operation except in accordance with this chapter." (SCC, § 10-5.106, subd. (a).) A use permit is required for any surface mining operation which is not determined to be vested. (SCC, § 10-5.107.) "A use permit shall also be required for the expansion of a surface mining operation beyond the boundaries of the vested area." (Ibid.)
The SCC sets forth how a vested right to surface mining is determined. "The horizontal boundaries of the vested rights shall be determined by the Planning Director based on information presented by the operator to substantiate the vested right. The Planning Director shall evaluate the information presented by the operator. Additional information may be requested by the Planning Director if it is determined to be needed to evaluate the possible vested rights." (SCC § 10-5,106, subd. (d).)
The scope of a vested right to surface mine was at issue in Hansen Brothers Enterprises, Inc. v. Board of Supervisors (1996) 12 Cal.4th 533 (Hansen Brothers). In Hansen Brothers, the Supreme Court found the diminishing asset doctrine, "an exception to the rule banning expansion of a nonconforming use that is specific to mining enterprises," applied in California. (Hansen Brothers, supra, 12 Cal.4th at pp. 553, 559.) Under the diminishing asset doctrine, "[w]hen there is objective evidence of the owner's intent to expand a mining operation, and that intent existed at the time of the zoning change, the use may expand into the contemplated area." (Hansen Brothers, supra, at p. 553.)
The diminishing asset doctrine recognizes that mining anticipates expansion into areas not previously used. "'The very nature and use of an extractive business contemplates the continuance of such use of the entire parcel of land as a whole, without limitation or restriction to the immediate area excavated at the time the ordinance was passed. A mineral extractive operation is susceptible of use and has value only in the place where the resources are found, and once the minerals are extracted it cannot again be used for that purpose. "Quarry property is generally a one-use property. The rock must be quarried at the site where it exists, or not at all. An absolute prohibition, therefore, practically amounts to a taking of the property since it denies the owner the right to engage in the only business for which the land is fitted." [Citations.] An entire tract is generally regarded as within the exemption of an existing nonconforming use, although the entire tract is not so used at the time of the passage or effective date of the zoning law.' [Citation.]" (Hansen Brothers, supra, 12 Cal.4th at pp. 553-554, original italics.)
The County's general zoning ordinance limits a nonconforming use to the geographical area that the use occupied on or before June 17, 1974. "Except as otherwise provided in this article, all uses of land . . . existing on or before June 17, 1974, may be continued although the particular use . . .does not conform to the provisions of this chapter . . .; provided, however, no nonconforming . . . use of land may be extended to occupy a greater area of land . . . than is occupied on or before June 17, 1974." (SCC, § 10-6.2501.)
"[I]f an entity claims a vested right pursuant to SMARA to conduct a surface mining operation that is subject to the diminishing asset doctrine, that claim must be determined in a public adjudicatory hearing that meets procedural due process requirements of reasonable notice and an opportunity to be heard." (Calvert v. County of Yuba (2006) 145 Cal.App.4th 613, 617.)
Plaintiffs contend that under the diminishing asset doctrine, there is a vested right to surface mine the entire property. Before the requirement of a use permit went into effect, in reliance on the authorization provided by the Williamson Act contracts, under which mining was permitted, surface mining was conducted at Timberhitch Quarry. They contend the intent was to mine the entire property as "you go where the gravel is."
The County offers various reasons as to why plaintiffs' argument lacks merit. It contends they provided insufficient information for the County to make a vesting determination; Hansen Brothers is inapplicable to vesting under SMARA; the issue of vested right was not properly raised in the administrative proceedings; and estoppel prevents the assertion of a vested right.
We need consider only whether plaintiffs can assert a vested right to mine Timberhitch Quarry. For reasons we now explain, we conclude they cannot.
The Attorney General addressed several issues relating to vested rights under Public Resources Code section 2776 in a 1976 opinion. (59 Ops.Cal.Atty.Gen. 641 (1976).) One of the questions before the Attorney General was whether the vested right to conduct surface mining operations without a permit is a property right and whether it is transferable through sale or other means. (59 Ops.Cal.Atty.Gen. 656 (1976).) The Attorney General's analysis began by noting that the acquisition of a vested right is grounded on equitable principles of estoppel and the exemption from the permit requirement extends only to those who incurred substantial liabilities in reliance on existing permits or authorization. "This rule means that since the exemption created by section 2776 is by its own terms a vested right, and since the acquisition of a vested right is based on estoppel, only the person who acted in reliance on a governmental approval and is thus in a position to estop a revocation of the approval may claim that his reliance has ripened into a vested right. In that sense, the creation of a vested right is a personal process, and a successor in interest to real property may not assert that his predecessor's actions created a vested right in favor of the successor, where the predecessor did not himself establish the vested right." (Id. at pp. 656-657, original italics.) Once the vested right has been established, however, it is a property right and may be transferable to a successor in interest. (Id., at p. 657.)
Consideration of Attorney General's opinions "is particularly appropriate where . . . no clear case authority exists, and the factual context of the opinions is closely parallel to that under review." (Thorpe v. Long Beach Community College Dist. (2000) 83 Cal.App.4th 655, 662-663.)
We find the reasoning of the Attorney General's opinion persuasive. Accordingly, we conclude plaintiffs have no vested right to mine Timberhitch Quarry without a use permit.
Here, plaintiffs assert that Timberhitch's conduct of surface mining operations in the 1960's and early 1970's created a vested right in their favor. This assertion is exactly what the Attorney General classifies as inadequate. We recognize that McMillan argues as though he and Timberhitch are one and the same. Timberhitch, however, was a corporation.
"Ordinarily, a corporation is regarded as a legal entity, separate and distinct from its stockholders, officers and directors, with separate and distinct liabilities and obligations. [Citations.]" (Sonora Diamond Corp. v. Superior Court (2000) 83 Cal.App.4th 523, 538.) Having chosen to benefit by conducting his surface mining operations through a corporate identity, McMillan must also accept the limitations that attach to that identity.
As Civil Code section 3521, a maxim of jurisprudence, states: "He who takes the benefit must bear the burden."
"The vested rights doctrine was founded upon an estoppel theory." (Court House Plaza Co. v. City of Palo Alto (1981) 117 Cal.App.3d 871, 885.) "The foundation of the vested rights doctrine is estoppel which protects a party that detrimentally relies on the promises of government." (Monterey Sand Co. v. California Coastal Com. (1987) 191 Cal.App.3d 169, 177.) "[T]here is no meaningful distinction between an estoppel claim and a vested right claim where land use is at issue." (Toigo v. Town of Ross (1998) 70 Cal.App.4th 309, 321.)
The purpose of estoppel is to protect against injury to the person who relied. (See Driscoll v. Los Angeles (1967) 67 Cal.2d 297, 305 [elements of estoppel include reliance resulting in injury].) Thus, it is the person who relied on the government's representations who may obtain the vested right.
In the relevant time period, before 1976, the person who relied upon prior approvals to conduct a surface mining operation was the corporation Timberhitch. Timberhitch owned the property. Timberhitch entered into the Williamson Act contracts with the County.
Public Resources Code section 2776 provides an exemption from the permit requirement for one "who has obtained a vested right to conduct surface mining operations." (Italics added.) Here no one has obtained a vested right. The parties agree that no vesting determination has been made, and a vesting determination is the remedy plaintiffs seek. During the period Timberhitch conducted surface mining operations, it did not assert a vested right. Instead, it obtained a use permit, which was renewed.
The personal nature of the creation of a vested right was emphasized in Urban Renewal Agency v. California Coastal Zone Conservation Com. (1975) 15 Cal.3d 577 (Urban Renewal Agency). Our Supreme Court held a municipal corporation may qualify for an exemption from the permit requirement under Public Resources Code section 27404, but the exemption did not extend to activities undertaken by private developers who purchased the land. (Urban Renewal Agency, supra, 15 Cal.3d at p. 580.) The court noted the exemption, like that afforded by section 2776, applied to a "person who has obtained a vested right . . ." "The statute contains no readily observable authority for expanding the exemption of one person to afford an exemption to another person who has not himself acquired vested rights." (Urban Renewal Agency, supra, at p. 586.)
The court further noted: "The Coastal Act represents a comprehensive scheme to protect and preserve the natural and scenic resources of the coastal zone, and to insure that any development which occurs within the zone will be consistent with this overall objective. [Citation.] To that end, substantial doubts regarding the meaning and effect of the exemption provision [citation] should be resolved against the person seeking exemption." (Urban Renewal Agency, supra, 15 Cal.3d at p. 588.)
SMARA likewise represents a comprehensive scheme to encourage the production and conservation of minerals, while preventing or minimizing environmental effects and eliminating residual hazards to public health and safety. (Pub. Resources Code, § 2712.) Therefore, any doubts as to the meaning or effect of the exemption should be resolved against the person seeking the exemption. (See Sacramento County Employees' Retirement System v. Superior Court (2011) 195 Cal.App.4th 440, 453 [construing statutory exemptions narrowly].)
Plaintiffs cannot claim a vested right to conduct surface mining operations based on the previous conduct of Timberhitch. Equitable estoppel "rests firmly upon a foundation of conscience and fair dealing." (City of Long Beach v. Mansell (1970) 3 Cal.3d 462, 488.) Here it is not unfair to deny vested rights to plaintiffs because they knew of the requirement of a use permit before acquisition of the mineral rights in 2003.
Because we have found that plaintiffs cannot assert a vested right to conduct surface mining operations at Timberhitch Quarry based on the conduct of a predecessor corporation, their request for remand for a vesting determination must fail.
Although not raised by the County other than to argue mootness, abandonment provides another basis for finding no vested right. The evidence was there had been no mining at Timberhitch Quarry since 2002. The Chairman of the Planning Commission said a key issue was whether vesting was lost because the mine was idle. This issue was not resolved or even discussed further.
The issue of abandonment of a nonconforming use arose in Hansen Brothers as there had been no hillside quarrying for periods of 180 days up to three years. During that time, stockpiles were adequate to meet need. (Hansen Brothers, supra, 12 Cal.4th at p. 546.) The county ordinance provided that if a nonconforming use was discontinued for 180 days, any following use had to comply with zoning requirements. (Hansen Brothers, supra, at p. 568.) Our Supreme Court found the discontinuance of hillside mining for long periods was irrelevant because it did not view the hillside quarrying as a separate use, but as part of the "single use" of production of aggregate, which included river bed mining and rock quarrying. (Id. at p. 565.) Here, no evidence suggests the quarrying was part of a larger use. In addition, a nonconforming use may be limited to the period adequate for amortization of the owners' investment. (Id. at p. 552.)
Plaintiffs have no vested right to mine at Timberhitch Quarry and cannot assert one, so we need not address their arguments about the proper standard of review, the applicability of the diminishing asset doctrine, the County's refusal to make a vesting determination, and the need to vacate the Board's other decisions relating to the mining operation.
IV
Failure to Disclose Full Spreadsheet
Plaintiffs contend the administrative proceedings were not a fair trial under Code of Civil Procedure section 1094.5 and therefore the trial court erred in refusing to grant the writ. They assert the "most notable unfairness" was the County's withholding of a spreadsheet that shows the Timberhitch Quarry is vested. Although McMillan requested it, the County did not provide the full spreadsheet showing mines in the County until after the administrative appeal. The information provided earlier did not include the vesting notation.
Inquiry on administrative mandamus extends to "whether the respondent has proceeded without, or in excess of jurisdiction; whether there was a fair trial; and whether there was any prejudicial abuse of discretion." (Code Civ. Proc, § 1094.5, subd. (b).)
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The County contends the trial court erred in taking judicial notice of the spreadsheet. The County, however, did not file a cross-appeal. "[A] party who has not appealed may not complain of errors." (Phillips v. Phillips (1953) 41 Cal.2d 869, 875; Kardly v. State Farm Mut. Auto Ins. Co. (1995) 31 Cal.App.4th 1746, 1748, fn. 1.) Without a timely cross-appeal, we lack jurisdiction to consider respondents' claim of trial court error. (In re Marriage of Shupe (1983) 139 Cal.App.3d 1026, 1036.)
The spreadsheet in the record is difficult to read because the print is so small. We remind appellants that it is their burden to provide an adequate record to demonstrate error. (Ballard v. Uribe (1986) 41 Cal.3d 564, 574.) As best we can determine (by enlarging the page in the record), the listing for "Butte Creek Minerals (aka Timberhitch)" shows two footnote notations next to the use permit number: a "v" and an "s." The legend indicates the "v" means vested prior to January 1, 1976. The "s" means a reclamation plan is contained within the issued use permit. The County agrees with this reading.
While we do not condone the County's action in failing to turn over the requested information on a timely basis, consideration of the missing document does not contradict the conclusion that plaintiffs did not have a vested right that excused the permit requirement. Accordingly, the trial court did not err in concluding plaintiffs were not denied a fair trial.
Throughout the administrative proceedings, the County viewed vesting solely in terms of reclamation requirements. For example, when McMillan argued to the Board of Supervisors that vested miners were not required to have permits, Deputy Planning Director Sandy Roper responded that reclamation was required for all land disturbed on or after January 1, 1976. Staff argued a map of the area disturbed prior to 1976 was needed to determine vesting. After the initial hearing, in response to the Board's question why vesting was important, staff responded: "It is important to determine what portions of the mine are vested because areas that are not vested are subject to reclamation." The County seemed not to understand plaintiffs' argument that, under Public Resources Code section 2776, a vested right eliminated the permit requirement. The County took the position a use permit was required for mining in any new areas.
The notations on the spreadsheet continue the County's understanding that vesting applies only for reclamation purposes, not for land use purposes. While the notations show Timberhitch Quarry was vested before January 1, 1976, they also cite the reclamation plan contained in the use permit. The County did not construe vesting to eliminate the permit requirement and nothing in the full spreadsheet can be read to support the position that the County had made a vesting determination applicable to the permit requirement.
In a related argument, plaintiffs contend the trial court erred in not permitting them to supplement the record to show McMillan's attempt to cross-examine the Department's staff on the issue of vesting.
In the motion to supplement the administrative record, plaintiffs offered McMillan's declaration. In the third paragraph of the declaration, McMillan offered the attached full spreadsheet. He also declared the transcript of the hearing before the Board of Supervisors was incomplete. At the hearing, the Department's staff indicted there were five or six vested mines in the County. McMillan declared he then interjected, asking staff to name them. The court reporter took exception to McMillan speaking over staff. The Chairman called McMillan out of order and the hearing resumed without the Department having to disclose that the mine was vested, according to the spreadsheet.
We find no error. First, we reject the contention that an interrupting outburst constitutes a proper attempt at cross-examination. Moreover, we have held ante that the omission of the full spreadsheet, and the County's designation of Timberhitch Quarry as vested, did not prejudice plaintiffs. The County has consistently used the "vested" designation to refer only to portions of the mine that are not subject to reclamation under SMARA. There is no evidence the County made a vesting determination for land use purposes.
DISPOSITION
The judgment is affirmed. The County shall recover costs on appeal. (Cal. Rules of Court, rule 8.275(a)(3).)
DUARTE, J.
We concur:
NICHOLSON, Acting P. J.
HULL, J.