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AGENDA

Wednesday, February 12, 2014 5:30 P.M. Open Session




SPECIAL MEETING
CITY COUNCIL, AIRPORT COMMISSION,
MARINA ABRAMS B NON-PROFIT CORPORATION,
AND SUCCESSOR AGENCY OF THE FORMER MARINA REDEVELOPMENT AGENCY

Council Chambers
211 Hillcrest Avenue
Marina, California

VISION STATEMENT
Marina will grow and mature from a small town bedroom community to a small city which is
diversified, vibrant and through positive relationships with regional agencies, self-sufficient. The City
will develop in a way that insulates it from the negative impacts of urban sprawl to become a desirable
residential and business community in a natural setting. (Resolution No. 2006-112 - May 2, 2006)

MISSION STATEMENT
The City Council will provide the leadership in protecting Marinas natural setting while developing
the City in a way that provides a balance of housing, jobs and business opportunities that will result in
a community characterized by a desirable quality of life, including recreation and cultural
opportunities, a safe environment and an economic viability that supports a high level of municipal
services and infrastructure. (Resolution No. 2006-112 - May 2, 2006)

1. CALL TO ORDER

2. ROLL CALL & ESTABLISHMENT OF QUORUM: (City Council, Airport
Commissioners, Marina Abrams B Non-Profit Corporation, and Redevelopment Agency
Members)

Nancy Amadeo, David W. Brown, Gail Morton, Mayor Pro-Tem/Vice Chair Frank
OConnell, Mayor/Chair Bruce C. Delgado

3. CLOSED SESSION: As permitted by Government Code Section 54956 et seq., the (City
Council, Airport Commissioners, Marina Abrams B Non-Profit Corporation, and
Redevelopment Agency Members) may adjourn to a Closed or Executive Session to
consider specific matters dealing with litigation, certain personnel matters, property
negotiations or to confer with the Citys Meyers-Milias-Brown Act representative.
6:30 PM - CONVENE OPEN SESSION AND REPORT ON ANY ACTIONS TAKEN IN
CLOSED SESSION
4. MOMENT OF SILENCE & PLEDGE OF ALLEGIANCE (Please stand)

Agenda for Special City Council Meeting of Wednesday, February 12, 2014 Page 2

5. OTHER ACTION ITEMS: Action listed for each Agenda item is that which is requested by
staff. The City Council may, at its discretion, take action on any items. The public is invited to
approach the podium to provide up to four (4) minutes of public comment.
Note: No additional major projects or programs should be undertaken without review of the impacts
on existing priorities (Resolution No. 2006-79 April 4, 2006).
a. City Council consider an appeal of the decision of the Planning Commission
declining to make an interpretation of Marina Municipal Code (MMC) Section
17.41.260, Surface Mining and Reclamation Standards, pursuant to a request by
City Staff in accordance with MMC Section 17.56.020. Specifically, the City
Council is asked to determine whether the two proposed temporary exploratory
boreholes proposed by California American Water (Cal Am) at the CEMEX
mining operation are within CEMEXs surface mining operation and therefore
within the scope of the existing CEMEX entitlements.
6. ADJOURNMENT:

CERTIFICATION

I, Anita Sharp, Acting Deputy City Clerk, of the City of Marina, do hereby certify that a copy of the
foregoing agenda was posted at City Hall and Council Chambers Bulletin Board at 211 Hillcrest
Avenue, Monterey County Library Marina Branch at 190 Seaside Circle, City Bulletin Board at the
corner of Reservation Road and Del Monte Boulevard on or before 6:30 p.m., Friday, February 7,
2014.


_______________________________________
ANITA SHARP, ACTING DEPUTY CITY CLERK
City Council, Airport Commission and Redevelopment Agency meetings are recorded on tape and
available for public review and listening at the Office of the City Clerk, and kept for a period of 90
days after the formal approval of MINUTES.

City Council meetings may be viewed live on the meeting night and at 12:30 p.m. and 3:00 p.m. on
Cable Channel 25 on the Sunday following the Regular City Council meeting date. In addition,
Council meetings can be viewed at 6:30 p.m. every Monday, Tuesday and Wednesday. For more
information about viewing the Council Meetings on Channel 25, you may contact Access Monterey
Peninsula directly at 831-333-1267.
Agenda items and staff reports are public record and are available for public review on the City's
website (www.ci.marina.ca.us), at the Monterey County Marina Library Branch at 190 Seaside Circle
and at the Office of the City Clerk at 211 Hillcrest Avenue, Marina between the hours of 10:00 a.m.
5:00 p.m., on the Monday preceding the meeting.
Supplemental materials received after the close of the final agenda and through noon on the day of the
scheduled meeting will be available for public review at the City Clerks Office during regular office
hours and in a Supplemental Binder at the meeting.
Members of the public may receive the City Council, Airport Commission and Redevelopment Agency
Agenda at a cost of $55 per year or by providing a self-addressed, stamped envelope to the City Clerk.
The Agenda is also available at no cost via email by notifying the City Clerk at
marina@ci.marina.ca.us.
Agenda for Special City Council Meeting of Wednesday, February 12, 2014 Page 3

ALL MEETINGS ARE OPEN TO THE PUBLIC. THE CITY OF MARINA DOES NOT
DISCRIMINATE AGAINST PERSONS WITH DISABILITIES. CITY HALL AND COUNCIL
CHAMBERS ARE ACCESSIBLE FACILITIES.
U p c o m i n g 2 0 1 4 Me e t i n g s o f t h e C i t y C o u n c i l , A i r p o r t
C o m m i s s i o n , Ma r i n a A b r a m s B N o n - P r o f i t C o r p o r a t i o n ,
a n d S u c c e s s o r A g e n c y o f t h e F o r m e r R e d e v e l o p m e n t A g e n c y
R e g u l a r Me e t i n g s : 5 : 3 0 p . m . C l o s e d S e s s i o n ;
6 : 3 0 p . m . R e g u l a r O p e n S e s s i o n s

** Wednesday, February 19, 2014

***Wednesday, August 6, 2014
Tuesday, August 19, 2014

Tuesday, March 4, 2014
Tuesday, March 18, 2014

** Wednesday, September 3, 2014
Tuesday, September 16, 2014

Tuesday, April 1, 2014
Tuesday, April 15, 2014

Tuesday, October 7, 2014
Tuesday, October 21, 2014

Tuesday, May 6, 2014
Tuesday, May 20, 2014

****Wednesday, November 5, 2014
Tuesday, November 18, 2014

Tuesday, June 3, 2014
Tuesday, June 17, 2014

Tuesday, July 1, 2014
Tuesday, July 15, 2014
Tuesday, December 2, 2014
Tuesday, December 16, 2014

** Regular Meeting rescheduled due to Monday Holiday
*** Regular Meeting rescheduled due National Night Out
**** Regular Meeting rescheduled due to 2014 Elections
NOTE: Regular Meeting dates may be rescheduled by City Council only.

_________________________________________

C I T Y H A L L H O L I D A Y S
(City Hall Closed)
Presidents Day ---------------------------------------------------------------- Monday, February 17, 2014
Memorial Day -----------------------------------------------------------------------Monday, May 26, 2014
Independence Day----------------------------------------------------------------------- Friday, July 4, 2014
Labor Day ---------------------------------------------------------------------- Monday, September 1, 2014
Veterans Day ----------------------------------------------------------------- Tuesday, November 11, 2014
Thanksgiving Day ---------------------------------------------------------- Thursday, November 27, 2014
Thanksgiving Break ---------------------------------------------------------- Friday, November 28, 2014
Winter Break -------------------------- Wednesday, December 24, 2014 Thursday, January 1, 2015

_ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _


February 7, 2014 Item No. 5a
Honorable Mayor and Members City Council Meeting of
of the Marina City Council February 12, 2014
CONSIDERATION OF APPEAL OF PLANNING COMMISSIONS
DENIAL OF REQUEST FOR AN INTERPRETATION OF MARINA
MUNICIPAL CODE SURFACE MINING AND RECLAMATION
STANDARDS THAT THE EXTRACTION OF WATER TO
DETERMINE ITS MINERAL CONTENT IS A SURFACE MINING
OPERATION WITHIN THE SCOPE OF THE CEMEX
ENTITLEMENTS
REQUEST:
It is requested that the City Council:
1. Consider an appeal of the decision of the Planning Commission declining to make an
interpretation of Marina Municipal Code (MMC) Section 17.41.260, Surface Mining and
Reclamation Standards, pursuant to a request by City Staff in accordance with MMC
Section 17.56.020. Specifically, the City Council is asked to determine whether the two
proposed temporary exploratory boreholes proposed by California American Water (Cal
Am) at the CEMEX mining operation are within CEMEXs surface mining operation
and therefore within the scope of the existing CEMEX entitlements.
BACKGROUND:
This matter was originally before the Planning Commission on January 23, 2013, at which
time it was continued. On February 6, 2014, City Staff brought the matter back to the
Planning Commission. The Commission was asked to interpret the Marina Municipal Code
Surface Mining and Reclamation Standards within the Coastal Zoning to determine whether
the proposed extraction of water to determine its mineral content is a surface mining
operation within the scope of the existing CEMEX entitlements. The Planning Commission
denied the request on a 4-2 vote. The correspondence submitted to the Planning Commission
is attached as EXHIBIT C. An appeal has been filed by Monterey Peninsula Regional
Water Authority (EXHIBIT D).
The City of Marina has received two separate requests by representatives of Cal Am and the
California Public Utilities Commission (CPUC) to drill a total of five exploratory
boreholes at the CEMEX mining site for the purpose of gathering information for the
preparation of the Environmental Impact Report (EIR) for the Monterey Peninsula Water
Supply Project (MPWSP). That Project is Cal Ams proposed regional desalination project.
CEMEX has authorized the drilling of the boreholes and issued a license to Cal Am for this
purpose. The first three boreholes were for soil exploration only, and were treated by City
Staff as an activity that is part of on-going surface mining operations of the CEMEX site.
These boreholes have been drilled and refilled.
The final two proposed boreholes would involve not only soil boring, but also the extraction
of a de minimus amount of water for a limited duration to determine its mineral content. Cal
Am and CPUC submit that these final two exploratory boreholes should be treated the same
as the prior soil extraction boreholes because the purpose is the same namely, the
examination of the minerals present in the extracted material, but in this case it will also
include the extraction of a de minimus amount of water for water samples.
1
City Staff, the City Attorney, and the Citys Special CEQA/Land Use Counsel concur with
the interpretation, but brought the matter forward for a formal interpretation by the Planning
Commission pursuant to MMC Section 17.56.020 because of the public interest in this issue
and for transparency.
The interpretation of the scope of CEMEXs entitlements would guide the Citys process for
examining the final two proposed exploratory boreholes. If the City Council determines that
the proposed boreholes are within the scope of CEMEXs surface mining operation, then no
permit or approval from the City would be needed for the two final boreholes since the MMC
exempts CEMEX from having to obtain permits to conduct its surfacing mining operation
unless there are substantial changes made to the mining operations (MMC
17.41.260.D.2.(d)). If the City Council determines that the proposed boreholes are not within
the scope of CEMEXs entitled operation, a Coastal Development Permit would be required
for the final two boreholes.
FACTS & ANALYSIS:
This request seeks a determination of the applicability of MMC Section 17.41.260
(EXHIBIT A) to two proposed exploratory boreholes. The boreholes would be made for
the purpose of testing the mineral extracted, including the content of water extracted there
from and would be dug in an area designated for mining under the CEMEX Reclamation
Plan. The locations of the existing boreholes (CB-1, CB-2 and CB-4) and proposed
boreholes (CB-3 and CB-5) are shown on EXHIBIT B.
The proposed boreholes would be dug in close proximity to three completed boreholes. The
boreholes would be approximately 6 in diameter, 300 to 350 feet deep and would leave no
permanent footprint.
1
While 10,000 gallons of water would be pumped from each borehole
(20,000 total for the testing), we understand from Cal Am that only a total 14 liters would be
taken from the site for scientific testing regarding mineral content. It is important to note that
this is not a ground water production effort, but instead is for scientific sampling, and would
not have any impacts on water rights. The borehole operations would only occur during
daylight hours and each borehole would require approximately 10 days to move equipment in
to place for use, and then be decommissioned. Except for the 14 liters that would be taken
offsite for testing, the water collected during the process would be stored in the on-site baker
tank and then slowly deposited back into the ground via a small percolation pit.
MMC Chapter 17.41.260 details and regulates Surface Mining and Reclamation Standards in
the Coastal Zone. This Section was adopted pursuant to Cal. Public Resources Code 2710
et seq. The pertinent definitions are found in MMC Section 17.41.260.B. (Definitions). This
code section states:
Surface mining operations means all or any part of the process involved in the
mining of minerals on mined lands by removing overburden and mining directly
from the mineral deposits, open-pit mining of minerals naturally exposed, mining
by the auger method, dredging and quarrying, or surface work incidental to an
underground mine. Surface mining operations shall include, but are not limited to:
(1) in-place distillation, retorting or leaching; (2) the production and disposal of
mining waste; and (3) prospecting and exploratory activities.

1
After the requisite amount of water is pumped for mineral testing, the boreholes will be terminated in a way that is
consistent with County standards and leave no lasting footprint.
2
Exploration or prospecting means the search for minerals
2
by geological,
geophysical, geochemical or other techniques, including, but not limited to,
sampling, assaying, drilling, or any surface or underground works needed to
determine the type, extent or quality of minerals present (emphasis added).
Mineral is defined in the MMC to mean any naturally occurring chemical element or
compound or groups of elements or compounds, formed from inorganic processes and organic
substances, including, but not limited to, sand, but excluding geothermal resources, natural gas
and petroleum (MMC 17.41.260.B).
Staff believes that the proposed exploratory borings to pump out water to determine mineral
content fall under the definition of surface mining operations and falls well within the scope of
CEMEXs entitled operations CEMEX is currently entitled to withdraw up to 500 afy of
groundwater for its operation. Pursuant to the Reclamation Plan, daily usage of water is over
500,000 gallons. Thus, water extraction is a fundamental part of CEMEXs operation. The
purpose of pumping the water is to determine the type, extent or quality of minerals present in
each respective test sample. This places this activity within the statutory definition of
prospecting and exploratory activities and thus, it would be considered to be an entitled
surface mining operations under CEMEXs entitlements.
As mentioned above, the determination of the scope the CEMEX entitlements will inform the
Citys process for examining the exploratory test boreholes. Staff interprets the actions to fall
under the activities defined in MMC Section 17.41.260 and within the scope of current CEMEX
entitlements. However, the request was directed to the Planning Commission (now to City
Council on appeal) for the official interpretation.
At the Planning Commission meeting, there was some discussion and some confusion regarding
e-mails and communications from Mr. Stephen Testa, the Executive Officer of the State Mining
and Geology Board. Within EXHIBIT C is the most current communication from Mr. Testa
dated February 6, 2014, at 5:18 pm. Therein he clarifies that the permitting under the Citys
zoning ordinances is wholly a matter of city concern. Further, he notes that provided that the
proposed activity does not conflict with Reclamation Plan (EXHIBIT E), the proposed water
sampling would not involve the State Mining and Geology Board.
CONCLUSION:

This appeal is submitted for the City Councils consideration.
Respectfully submitted,

___________________________
M. Katherine Jenson
City of Marina CEQA/Land Use Counsel
Rutan & Tucker, LLP
REVIEWED/CONCUR:


____________________________
Christine di Iorio, AICP
Director, Community Development Department


3
City of Marina

Attachments: Proposed Resolution
Exhibit A Marina Municipal Code Section 17.41.260
Exhibit B Map of Proposed Boreholes
Exhibit C Correspondence
Exhibit D Appeal
Exhibit E Reclamation Plan












































4
RESOLUTION NO. 2014-
A RESOLUTION OF THE CITY COUNCIL OF THE CITY
OF MARINA REVERSING THE PLANNING
COMMISSIONS DENIAL OF REQUEST FOR AN
INTERPRETATION OF MARINA MUNICIPAL CODE
SURFACE MINING AND RECLAMATION STANDARDS
THAT THE EXTRACTION OF WATER TO DETERMINE
ITS MINERAL CONTENT IS A SURFACE MINING
OPERATION WITHIN THE SCOPE OF THE CEMEX
ENTITLEMENTS
WHEREAS, the City of Marina has received a request from representatives of the California
American Water Company and the California Public Utilities Commission to drill two
boreholes for a limited duration on the CEMEX mining site for the purpose of extracting
minerals through both soil and water to provide additional information on the hydrogeologic
conditions in the area of the site to complete an environmental study for the Monterey
Peninsula Water Supply Project Settlement Proposals in Application 12-04-019, which is
currently before the Public Utilities Commission of the State of California, and;
WHEREAS, CEMEX is currently entitled to conduct a surface mining operation as defined
by the Marina Municipal Code (MMC) on the CEMEX site, and;
WHEREAS, the City Staff has requested an interpretation by the Planning Commission of
the scope of the term surface mining operation as defined in MMC Section 17.41.260,
Surface Mining and Reclamation Standards and whether it would include a de minimus
extraction of water to provide information on its mineral content, and;
WHEREAS, pursuant to MMC Section 17.56.020, the Planning Commission has the
authority to render interpretations of the MMC, and;
WHEREAS, this request seeks a determination that the scope of a surface mining operation
extends to the extraction of water through a temporary borehole to determine its mineral
content for the limited purpose of the California American Water Company request to drill
two boreholes for a limited duration to extract minerals contained in water, consisting of
approximately 20,000 gallons of water for testing with all water returned to the site, except
for 14 liters, and;
WHEREAS, according to MMC Section 17.41.260.B, Surface mining operations means all
or any part of the process involved in the mining of minerals on mined lands by removing
overburden and mining directly from the mineral deposits, open-pit mining of minerals
naturally exposed, mining by the auger method, dredging and quarrying, or surface work
incidental to an underground mine. Surface mining operations shall include, but are not
limited to: (1) in-place distillation, retorting or leaching; (2) the production and disposal of
mining waste; and (3) prospecting and exploratory activities, and;
WHEREAS, Exploration or prospecting means the search for minerals by geological,
geophysical, geochemical or other techniques, including, but not limited to, sampling,
assaying, drilling, or any surface or underground works needed to determine the type, extent
or quality of minerals present, and;


5
Resolution No. 2014-
Page Two
WHEREAS, it has been represented by California American Water Company that
approximately 20,000 gallons of water will be extracted from the site so as to extract
minerals for testing, with all water returned to the site except for 14 liters, resulting in the
ability to make the finding that the only purpose of the extraction will be to explore for
minerals that are present in the water and there will be no other use of the water as a result of
this interpretation, and;
WHEREAS, on February 6, 2014, the Planning Commission voted against the requested
interpretation on a 4-2 vote, and;

WHEREAS, the staff report and testimony provided during the City Councils consideration
of this request supports the requested interpretation.
NOW THEREFORE, BE IT RESOLVED that the City Council of the City of Marina does
hereby reverse the Planning Commissions February 6, 2014 determination on this matter
and determines that, in accordance with Marina Municipal Code, Surface Mining and
Reclamation Standards, the extraction of water to determine its mineral content as proposed
in this particular instance is within the scope of a surface mining operation currently
permitted by the CEMEX entitlements.
PASSED AND ADOPTED by the City Council of the City of Marina at a regular meeting
duly held on the 12th day of February, 2014, by the following vote:
AYES: COUNCIL MEMBERS:
NOES: COUNCIL MEMBERS:
ABSENT: COUNCIL MEMBERS:
ABSTAIN: COUNCIL MEMBERS:

_____________________________
Bruce C. Delgado, Mayor
ATTEST:

____________________________
Anita DeAmaral, Acting Deputy City Clerk

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Chapter 17.41 COASTAL ZONING Page 1 of7
EXHIBIT A
17.41.260 Surface mining and reclamation standards.
A. Purpose and Intent.
1. This chapter is adopted pursuant to the California Surface Mining and Reclamation Act of
1975, Chapter 9, Public Resources Code.
2. The city council finds and declares that the extraction of minerals is essential to the
continued economic well-being of the city and to the needs of society, and that the reclamation
of mined lands is necessary to prevent or minimize adverse effects on the environment and to
protect the public health and safety.
3. The city council further finds that the reclamation of mined lands as provided in this chapter
will permit the continued mining of minerals and will provide for the protection and subsequent
beneficial use of the mined and reclaimed land.
4. The city council further finds that surface mining takes place in areas where the geologic,
topographic, climatic, biological and social conditions are different and that reclamation
operations and the specifications therefore may vary accordingly.
B. Definitions. As used in this chapter:
"Environmental assessment" means the study of the environment of an area proposed to be mined
including the flora, fauna, geologic, erosion potential and other factors deemed to be important by
qualified experts of appropriate disciplines.
"Environmental impact report" means a report on the environmental effects of a project prepared
according to the standards and provisions of the California Environmental Quality Act (CEQA).
"Exploration" or "prospecting" means the search for minerals by geological, geophysical, geochemical
or other techniques, including, but not limited to, sampling, assaying, drilling, or any surface or
underground works needed to determine the type, extent or quality of minerals present.
"General plan" means the adopted general plan for the city of Marina.
"Local coastal program" means the adopted local coastal land use and implementation plans for the
city as certified by the California Coastal Commission.
"Mined lands" means and includes the surface, subsurface and groundwater of an area in which
surface mining operations will be, are being, or have been conducted, including private ways and
roads appurtenant to any such area, land excavations, workings, mining waste, and areas in which
structures, facilities, equipment, machines, tools, or other materials or property which result from, or
are used in, surface mining operations are located.
"Minerals" means any naturally occurring chemical element or compound or groups of elements and
compounds, formed from inorganic processes and organic substances, including, but not limited to,
sand, but excluding geothermal resources, natural gas and petroleum.
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Chapter 17.41 COASTAL ZONING Page 2 of7
"Mining waste" means and includes the residual of soil, rock, mineral liquid, vegetation, equipment,
machines, tools or other materials or property directly resulting from, or displaced by, surface mining
operations.
"New mining" means and includes any significant increase in the rate of extraction or change in
location.
"Operator" means any person who is engaged in surface mining operations, himself, or who contracts
with others to conduct operations on his behalf.
"Overburden" means soil, rock or other materials that lie above a natural mineral deposit or in
between deposits, before or after their removal, by surface mining operations.
"Permit" means any formal authorization from or approval by, the city without which surface mining
operations cannot occur.
"Person" means any individual, firm, association, corporation, organization or partnership, or any city,
county, district or the state or any department or agency thereof.
"Reclamation" means the process of land treatment that minimizes water degradation, air pollution,
damage to aquatic or wildlife habitat, flooding, erosion, and other adverse effects from surface mining
operations, including adverse surface effects incidental to underground mines, so that mined lands
are reclaimed to a usable condition which is readily adaptable for alternate land uses and create no
danger to public health or safety. The process may extend to affected lands surrounding mined lands,
and may require backfilling, grading, resoiling, revegetation, soil compaction, stabilization, or other
measures.
"State board" means State Mining and Geology Board in the Department of Conservation, state of
California.
"State geologist" means the individual holding office as structured in Section 677 of Article 3, Chapter
2 of Division 1 of the Public Resources Code.
"Surface mining operations" means all or any part of the process involved in the mining of minerals on
mined lands by removing overburden and mining directly from the mineral deposits, open-pit mining
of minerals naturally exposed, mining by the auger method, dredging and quarrying, or surface work
incidental to an underground mine. Surface mining operations shall include, but are not limited to: (1)
in-place distillation, retorting or leaching; (2) the production and disposal of mining waste; and (3)
prospecting and exploratory activities.
C. Scope.
1. The provisions of this chapter shall apply to the incorporated areas of the city.
2. The provisions of this chapter are not applicable to:
a. Excavations or grading conducted for farming or on-site construction or for the purpose
of restoring land following a flood or natural disaster;
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Chapter 17.41 COASTAL ZONING Page 3 of7
b. Such other mining operations that the city determines to be of an infrequent nature, and
which involve only minor surface disturbances and are categorically identified by the State
Board pursuant to Sections 2714(d) and 2758(c), California Surface Mining and
Reclamation Act of 1975 (SMARA).
D. Permit, Reclamation Plan and Reporting Requirements.
1. Reclamation Plan Requirements. Reclamation plans as defined in this chapter shall be
required of all mining operations undertaken since January 1, 1976. Any person who proposes
to engage in new mining operations as defined in this chapter shall also be required to prepare a
reclamation plan prior to commencing new mining operations.
a. Existing Mining Operations. A person who has obtained a vested right to conduct
surface mining operations prior to January 1, 1976 shall submit and receive city approval of
a reclamation plan within two years from the effective date of the ordinance codified in this
chapter for all mining operations conducted after January 1, 1976. 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 lawfully conducted prior to, but not
after January 1, 1976.
b. Reclamation Plan Review. Approved reclamation plans shall be reviewed by the
planning commission at least every five years. It shall be the sole responsibility of the
operator to submit a written request to the planning commission prior to the expiration of
each five-year period. Operator shall provide the planning commission with ample evidence
that compliance is being maintained with the provisions of the approved reclamation plan.
The planning commission retains the right subsequent to reclamation plan review to modify
the terms of any reclamation plan to assure continuing compliance with the local coastal
program. Furthermore, the planning commission may consider and approve modification of
any reclamation plan requested by the operator so long as it finds that the reclamation plan
is in compliance with the local coastal program.
2. Permit Requirements. The planning commission shall issue a mining permit for any new
surface mining operation, which the planning commission finds is in conformance with the local
coastal program. No new mining activity shall take place prior to the issuance of a mining permit
by the planning commission.
a. Existing Mining Operations. Existing mining operations are required to obtain a mining
permit from the city in accordance with the requirements of this chapter within two years
from the date of adoption of the ordinance codified in this chapter except as provided in
subsection (D)(2)(d) of this section.
b. Mining Permit Review. The planning commission shall review mining permits issued
pursuant to this chapter every five years. It shall be the sole responsibility of the operator to
submit a written request to the planning commission prior to the expiration of each five-year
period. Operator shall provide the planning commission with ample evidence that
compliance is being maintained with the local coastal program and the approved
reclamation plan for the site. The planning commission retains the right subsequent to
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Chapter 17.41 COASTAL ZONING Page 4 of7
mining permit review to modify the terms of any mining permit required to assure continuing
compliance with the local coastal program. Furthermore, the planning commission may
consider and approve modifications of any mining permits so long as it finds that any such
modification is in compliance with the local coastal program and reclamation plan.
c. Review Period Adjustment. It is the intent of the city to review mining permits
concurrent with reviewing reclamation plans, whenever possible, for any individual mining
operation. In order to assure that the city's intent is realized the planning commission may
permit reasonable adjustments in the timing of mining permit review.
d. Permit Limitations. No person who has obtained a legal vested right to conduct a
surface mining operation prior to January 1, 1976 shall be required to secure a mining
permit pursuant to the provisions of this chapter so long as such vested right continues,
provided that no substantial change is made in that operation except in accordance with the
provisions of this chapter.
e. Mining Permit Revocation. Mining permits may be revoked by the planning commission
following a hearing. Operator shall be notified in writing at least ten days prior to such
hearing. Grounds for revocation shall be noncompliance with the provisions of this chapter,
the approved reclamation plan, coastal development permit (if applicable) and the local
coastal program (if applicable).
f. Notification of State Geologist. The State Geologist shall be notified of the filing of all
permit applications.
g. Periodic Review. This chapter shall be reviewed and revised, as necessary to ensure
that it is consistent with the state policy for mined lands reclamation and the city's local
coastal plan and general plan.
3. Reporting Provision. In order to establish reference base data for the purpose of
determining whether or not any particular mining activity constitutes new mining activity and to
monitor shoreline erosion it is required that all operators of existing mining operations submit to
the planning department a brief written statement specifying the approximate annual volume of
sand being removed and an accurate cronaflex ortho-topographic map, at a scale of one inch
equals two hundred feet with two-foot contour intervals, preferably prepared by a licensed
photogrammetric engineer. All elevations on said map shall be based on city datum. Said maps
may also be prepared by a licensed surveyor or civil engineer. All areas being mined shall be
clearly and accurately outlined on said topographic map. The information specified above shall
be certified for accuracy and be submitted by the operator to the city.
a. Initial Submittal. Initial submittal of the reference base data shall be completed by
existing operators within six months from the effective date of the ordinance codified in this
chapter.
b. Subsequent Resubmittal. Updated reference base data shall be resubmitted to the
planning department by January 1, 1984 and every January 1st thereafter.
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Chapter 17.41 COASTAL ZONING Page 5 of7
c. New Mining Operations. New mining operations will be required to submit reference
base data concurrent with the application for a mining permit and reclamation plan approval
and shall also be required to resubmit updated reference base data every January 1st
thereafter. If initial submittal of reference base material takes place after July 1st in any
given year operator shall be exempted for resubmitting updated reference base information
the following January 1st but shall be required to resubmit updated reference base material
every January 1st thereafter.
4. Permit and Reclamation Plan Fee. A fee shall be established by the city council and shall be
paid to the city at the time of filing a permit application or reclamation plan.
5. Reclamation Plan Requirements. The planning commission shall review reclamation plans
and find that they include the following:
a. The name and address of the operator and the names and addresses of any persons
designated by him as his agent for the service of process;
b. The anticipated quantity and type of materials for which the surface mining operation is
to be conducted;
c. The proposed dates for the initiation and termination of such operation;
d. The maximum anticipated depth and area of the surface mining operation;
e. The size and the legal description of the land, that will be affected by such operation, a
map that includes the boundaries and topographic details of such lands, a description of the
geology of the area in which surface mining is to be conducted; a line indicating the tsunami
run-up line; the location of all rare and endangered plant and animal species and their
habitat in the area where surface mining is to be conducted; the location of all streams,
roads, railroads and utility facilities within, or adjacent to such lands; the location of all
proposed access roads to be constructed in conducting such operation; and the names and
address of the owners of all surface and mineral interests of such lands;
f. A description of the type of surface mining to be employed and a time schedule that will
provide for the completion of surface mining on each segment of the mined lands so that
the reclamation can be initiated at the earliest possible time on those portions of the mined
lands that will not be subject to further disturbance by the surface mining operation;
g. A description of the proposed use or potential uses of the land after reclamation and
evidence that all owners of a possessory interest in the land have been notified of the
proposed use or potential uses;
h. A description of the manner in which reclamation adequate for the proposed use or
potential uses will be accomplished, including:
i. A description of the manner in which contaminants will be controlled, and mining
waste will be disposed, and
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Chapter 17.41 COASTAL ZONING Page 6 of7
ii. A description of the manner in which rehabilitation of affected natural habitat areas
to their original condition will occur, and
iii. A description of the manner in which the tsunami run-up zone will be preserved to
protect the public safety of the community;
i. An assessment of the effect of implementation of the reclamation plan on future mining
in the area;
j. A statement that the person submitting the plan accepts responsibility for reclaiming the
mined lands in accordance with the reclamation plan; and acknowledgement that the
obligations of the plan transfer from one operator to another on a site;
k. An environmental assessment of the area to be mined executed by at least a qualified
biologist and a qualified geologist selected from the city's list;
I. If in the environmental assessment, any rare and endangered species habitats and/or
shoreline erosion are found to be present on the site, an environmental impact report must
be completed and all mitigations, including those for rare and endangered species and/or
shoreline erosion, included in the proposed reclamation plan;
m. Compliance and conformance with the Marina local coastal program and city's general
plan, zoning ordinance and any other pertinent city ordinances and regulations;
n. Map of all areas mined prior to January 1, 1976;
o. Any other information which the planning commission may require as pertinent to the
determination of the adequacy of the proposed plan.
6. Time Limits. Time limits for the approval of a reclamation plan or mining permit for existing
operations may be ex1ended for a period of up to one year by the planning commission or city
council on appeal subject to the following conditions:
a. Written request is provided by the operator prior to expiration of initial two-year time
period.
b. Operator shall submit evidence to planning commission or city council showing good
cause for the ex1ension request.
7. Transferability. Whenever one operator succeeds to the interest of another in any
uncompleted surface mining operation by sale, assignment, conveyance, exchange, or other
means, the successor shall be bound by the provisions of the approved reclamation plan and
the provisions of this chapter.
E. Review Procedure. The planning commission shall review the permit application and the
reclamation plan and shall schedule a public hearing within thirty days of accepting the completed
application. The public hearing will be held for the purpose of considering a permit or reclamation plan
for the proposed surface mining operation.
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Chapter 17.41 COASTAL ZONING Page 7 of7
F. Performance Bond. Upon a finding by the planning commission that a supplemental guarantee
for the reclamation of the mined land is necessary, and upon the determination by the city planner of
the cost of the reclamation of the mined land according to the reclamation plan, a surety bond, lien, or
other security guarantee conditioned upon the faithful performance of the reclamation plan shall be
filed with the city. Such surety shall be executed in favor of the city and reviewed and revised, as
necessary. Such surety shall be maintained in an amount to complete the remaining reclamation of
the site as prescribed in the approved or amended reclamation plan during the succeeding two-year
period, or other reasonable term.
G. Public Record. Reclamation plans, reports, applications and other documents submitted
pursuant to this chapter are public records unless it can be demonstrated to the satisfaction of the city
that the release of such information, or part thereof, would reveal production, reserves, or rate of
depletion entitled to protection as proprietary information. The city shall identify such proprietary
information as a separate part of each application. A copy of all permits, reclamation plans, reports,
applications, and other documents submitted pursuant to this chapter, including proprietary
information, shall be furnished upon request of the district geologist of the State Division of Mines and
Geology by the city. Proprietary information shall be made available to persons other than the mine
owner in accordance with Section 2778, California Surface Mining and Reclamation Act of 1975.
H. Amendments.
1. Amendments to an approved reclamation plan may be submitted to the city at any time,
detailing proposed changes from the original plan. Substantial deviations from the original plan
shall not be undertaken until such amendment has been filed with, and approved by, the city.
2. Amendments to an approved reclamation plan shall be approved by the same procedure as
is prescribed for approval of a reclamation plan.
I. Variance. Variances from an approved reclamation plan may be allowed upon request of the
operator and applicant, if they are not one and the same, upon findings by the planning commission
that each requested variance is necessary to achieve the prescribed or higher use of the reclaimed
land and is consistent with the Marina local coastal program.
J. Appeal. Any person aggrieved by an act or determination of the planning commission in exercise
of the authority granted herein shall have the right to appeal to the city council. Any appeal must be
filed, on forms provided, within ten working days after the rendition, in writing, of the decision.
K. Enforcement. The provisions of this chapter shall be enforced by any authorized member of the
planning department or such other persons as may be designated by the city council.
L. Separability. If any section, subsection, sentence, clause or phrase of this chapter is for any
reason held to be invalid or unconstitutional by the decision of a court of competent jurisdiction, it
shall not affect the remaining portions of this chapter. (Ord. 2007-11 3 (Exh. A (part)), 2007)
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EXHIBIT B


14
Borehole Locations
EXHIBIT C
15
February 6, 2014
City of Marina Planning Commission
Mr. David Burnett, Chair
211 Hillcrest Avenue
Marina, CA 93933
RE: Interpretation of Municipal Code Relating to Surface Mining and Reclamation Standards
Dear Chairman Burnett and Commissioners:
Thank you for the opportunity to contribute comments relating to California American Water
Company's ("Cal-Am") proposed water sampling project under the city's Mineral Extraction
Ordinance (MMC) Sec. 17.41.260.
On behalf ofThe Monterey County Association of REALTORS, ("MCAR") I would like to express
our collective support for taking the appropriate steps necessary to ensure this project moves
forward as expeditiously as possible. The potential economic impacts associated with further
delays are of great concern to our organization.
The water samples to be extracted serve a substantial role in Cal-Am's proposed desalination
facility and ultimately will provide critical data needed to see the project progress. Additionally,
it appears Cal-Am is within the parameters set forth in Marina's Mining and Reclamation
Standards.
The positive collaboration on this project with stakeholders and the City of Marina is critical to
the overall success and viability of this project.
As ratepayers, we ask for your assistance and partnership in seeing this effort through this next
critical step. We respectfully request that you approve the water sampling project.
Thank you for your time and consideration.
Sincerely,
Kevin Stone
Government & Community Affairs Director
Monterey County Association of REALTORS
[B
REALTOR
0
201A Calle Del Oaks, Del Rey Oaks, California 93940
T: (831 )393.8660 F: (831 )393.8669 www.mcar.com
is a regi,tercd mork which identifieo d professional in real estate who ubscribes to slricJ Code of Ethics as a member of NATIONAL ASSOCIATION OF REALTORS'''

HOUS'i'NG
EXHIBIT C
16
Coalition of Peninsula Businesses
A coalition to resolve the Peninsula water challenge to
comply with the CDO at a reasonable cost
Members Include: Monterey County Hospitality Association, Monterey Commercial
Property Owners' Association, Monterey Peninsula Chamber of Commerce,
Carmel Chamber of Commerce, Pacific Grove Chamber of Commerce,
Monterey County Association of Realtors, Community Hospital of the Monterey Peninsula, Associated
General Contractors- Santa Clara-Monterey District
February 6, 2014
Planning Commission
City of Marina
211 Hillcrest
Marina, CA 93933
Members of the Commission:
The Coalition of Peninsula Businesses has been working closely with the Monterey
Peninsula Regional Water Authority, Monterey Peninsula Water Management, California
American Water and others to secure a sustainable long-term water solution for the
Peninsula.
It is critical that all municipals and interested parties work together in an efficient and
productive manner to finally resolve the water challenge affecting this region.
Tonight I would urge you to accept the staff's recommendation to allow water sampling
under your mineral extraction ordinance. In question is two boreholes which are required
by the PUC for the completion of the EIR for water sampling. The other six have been
approved by the County and State Parks.
If this issue is not resolved quickly, it will cause a delay in the schedule by six to nine
months. A delay that could cause serious consequences. The six plus months would take
us further into violation of the Cease and Desist Order which would trigger rationing,
affecting businesses and residents of the Monterey Peninsula and neighboring cities,
including Seaside and Marina. Marina should be concerned due to the following given
the unquestionable fact that rationing will be mandated:
12.4% of Marina residents are employed in accommodations and food service
industry.
Educational services, 10.2%
Healthcare, public administration, construction, 7%
23% of Marina residents take 20-24 minutes to get to work, 22% take 15-19
minutes.
EXHIBIT C
17
At the Monterey Plaza Hotel & Spa, 14% of our associates live in Marina.
With major restrictions placed on commercial industries, jobs will be lost. Conservation
is no longer a viable option.
As you can see, this is truly a regional challenge, one that requires cooperation in the
most efficient and expeditious manner. The Coalition urges the Marina Planning
Commission to approve the staff's recommendation as presented .
. Narigi
r, Coalition of Peninsula Businesses
Vice President and General Manager, Monterey Plaza Hotel & Spa
EXHIBIT C
18
February 5, 2014
Dear City of Marina,
As part of the Settlement Agreement signed on July 31, 2013 a Hydroegeologic Working Group (HWG) was
formed, Including representatives from the SVWC, MCF'B, California American Water, the CPUC and CEMEX.
The HWG developed a Workplan, that addresses all of the activities associated with exploring. modeling. testing,
monitoring and implementing the proposed MPWSP subsurface intake fucilities. The exploratory boreholes will be
used to obtain information on the geology and water character of hydrogeologic and the vertical and horizontal
distribution of the units. In addition, water quality data will be obtained from both the Dune Sand Aquifer and the
180-Foot Aquifer. The data gathered will be used to update the hydrogeologic conceptual model and to update the
North Marina Ground Water Model (Nlo.!GWM}. The model layers will be refined using the site-specific depth and
thickness information of the hydrogeologic units. The NMGWM will be used lore-evaluate the MPWSP operational
impacts, review proposed monitoring well locations, and to check for data gaps.
Each borebole will be drilled using the sonic drilling method to anticipated maximum depths between 300ft to 350
feet below ground surfuce. After review of the lithologic log and geophysical Jogs, samples will be collected from
core that represents the aquifer materials. Split spoon samples will be collected from each borehole for the purpose
oftesting for vertical permeability. Finally, depth to ground water measurements and depth-specific ground water
samples will be collected from each borehole to determine ground water elevation and water quality beneath the site.
To detennine the vertical variation in water quality and character, water samples will be collected from each
borehole geophysical borehole loggiog. A small submersible pump, !0-40 gpm, connected to 4" PVC pipe will be
lowered into borehole to extract the water quality samples. Water quality samples will be collected from a hose bib
of the discharge piping at the surfuce at each isolated aquifer zone test The water quality samples for labomtory
analysis will be collected direedy into the appropriate sampling container, which has been prepered per analytical
method requirements and supplied by the laboratory. The amount ofwater coUected is approximately two gallons
per borehole: Once the required water samples and water level measurements have been collected, the submersible
pump and screen section will he removed and the borehole will be filled with neat cement and sand in accordance
with Monterey County borehole permitting standards.
The CEMEX borehole water quslity samples are extremely important for the HWG to produce a North Marina
Ground Water Model that enables the design and location of slant wells for the MPWSP that does not impact the
groundwater aquifers.
As members of the HGWG, we look forward to your timely approval of this activity at CEMEX.
Sincerely,

Timothy Durbin PE
Timothy J. Durbin, Inc.
4509 Woodfuir Way
Carmichael, CA 95608

P.O. Box 30020
Santa Barbara, CA 93130
831-915-1115
EXHIBIT C
19
February 6, 2014
Planning Commission
City of Marina
211 Hillcrest
Marina, CA 93933
Members of the Commission:
Mot'l.tet"ey Hospitali-ty ..AssodatioV\
The Monterey County Hospitality Association urges your Commission to determine tonight that the exploratory
extraction of water for the purpose of determining its mineral content is a surface mining operation. This is an vital
step in the environmental review process for the proposed regional water supply project. It is essential that this
process continue to move forward so that Monterey Peninsula can be assured of a sustainable long-tenn water
supply.
The Monterey County Hospitality Association has over 250 members representing all phases of the hospitality
industry throughout Monterey County. Our industry employs more than 20,000 people and generates over $2
billion in local tax revenue. The impact of not having a Jong-tenn water supply will be disastrous our industry, the
local economy and our communities. Without a water supply we are faced with severe rationing that would result in
a significant reduction in or outright closure of those businesses which make up and support the hospitality
industry. There would be a significant loss of jobs and local tax revenue. Many of our industry's employees live in
Marina. We checked with just four hotels (Hyatt Regency, Marriott, Monterey Plaza and the Portola) and found that
those hotels employ over 200 Marina residents. If you consider all of the hospitality related businesses in our area
including restaurants, retail stores and other lodging facilities the number of Marina residents employed in the
hospitality industry would undoubtedly he well over 1,000.
This is not just an issue for those served by Ca!Am. Persons who might look to visit our area cannot distinguish
water service providers. If there is not a new water supply there will be a vmy strong impression that our area is not
"open for business." If visitors do not come to the Peninsula they in all likelihood will not be visiting Marina. Our
local businesses, if they survive, will not expand. New businesses will not be interested in coming to our area. The
ripple effect of not securing a long tenn water supply will devastate our local economy.
Please act tonight and determine that the exploratory extraction of water to detennine its mineral content is a
surface mining operation.
Sincerely,
Sam Teel, Chair
ADMINISTRATIVE OFFICE
OCEAN & MISSION SUITE P.O. BOX 223542 CARMEL, CA e 93922
PHONE: FAX: 831-626-4269 EMAIL: badams@adcomm4.com
EXHIBIT C
20
Carmel River Watershed Conservancy
PO Box 223833, Carmel, CA 93922
February 6, 2014
Board of Directors:
Lorin Letendre, President
Michael Waxer, VP
Abbie Beane, Treasurer
Paul Bruno, Secretary
Catherine Bowie
Monica Hunter
Vince Voegeli
Barbara Rainer
Andy Magnasco
Good evening. Thank you for allowing us the opportunity to share this message with you. On behalf of the Board
of Directors of the Carmel River Watershed Conservancy, this message serves to strongly urge that you approve
your staffs recommendation to permit water sampling to occur as a use that is allowed under your mineral
extraction ordinance.
The thousands of people who have enjoyed, and hope to continue to enjoy, recreation in the Carmel River and its
creeks, and the threatened species that reside in that River and its creeks have waited many years for an alternative
water supply source for the Monterey Peninsula. The River is heavily over-drafted each year to supply water for
the Peninsula's residents, whereas it once ran to the ocean pretty much all year long-at least in average or above
average years.
Now that the state is facing the worst drought in d e c a d ~ s it is imperative that the Peninsula moves ahead to
develop an alternative water supply so the Peninsula's residents don't face water rationing or economic disaster,
and so that the River can be restored to its former health and beauty.
Cal-Am and the Mayor's Authority have collaborated to develop that alternative water supply project including a
desalination plant, but the project schedule is threatened with a crippling delay unless you are able to act to expedite
the borehole phase of the project. The water quality data drawn from the borehole is critical to the California
Public Utility Commission's completion of the Enviromnental Impact Report and permitting of the desalination
project. If Cal Am is unable to proceed, the desalination project could be delayed by up to six months.
Six months takes us further into violation of the State's Cease and Desist Order and risks a crippling effect on the
Monterey Peninsula economy, which employs many Marina residents. Six months will also mean another summer
lost on the Carmel River. If you approve the project today, Cal Am will be able to proceed with boreholes before
the snowy plover begin their nesting season. If not, the drilling could be put off to November - a critical delay given
all that's at stake.
The desalination project will provide hundreds of construction jobs- including work on the intakes and pipelines
that run through your City. Cal Am has a 50% local hire requirement, which is an opportunity for our entire area.
For these reasons, we respectfully request that you approve Cal-Am's water sampling as a use that is allowed under
your mineral extraction ordinance.
Thank you for your time.
Lorin Letendre, CRWC President
501 C Nonprofit Corporation Tax ID # 77-0548869
3785 Via Nona Marie Suite 204, Carmel CA 93923
E-mail: letendre@sbcglobal.net
Webpage http://www.carmelriverwatershed.org
Tel: 831-624-2300
EXHIBIT C
21
Michael W. Stamp
Molly Erickson
Olga Mikheeva
Jennifer McNary
Bruce Delgado, Mayor
City of Marina
211 Hillcrest Ave.
Marina, CA 93933
STAMP I ERICKSON
Attorneys at law
February 5, 2014
479 Pacific Street, Suite One
Monterey, California 93940
T: (831) 373-1214
F: (831) 373-0242
Re: Proposed "interpretation": February 6, 2014 planning commission agenda
Dear Mayor Delgado:
This Office represents Ag Land Trust, which presents significant new information
about the "interpretation" that Cal Am, the CPUC, and your legal counsel are pressuring
Marina to adopt. At the January 23 planning commission meeting, Ag Land Trust
argued that the "interpretation" violates the state's Water Code and surface mining act.
Today the Executive Officer of the State Mining and Geology Board confirmed
that "extraction of groundwater is not deemed a surface mining operation under the
Surface Mining and Reclamation Act (SMARA)." (Bold emphasis in original.)
Background: Yesterday, the City of Marina released the staff report for the
February 6 planning commission agenda item: a request by Marina planning staff and
Marina's outside land use counsel for an interpretation "that the extraction of water to
determine its mineral content is a surface mining operation." I forwarded the staff report
to the State Mining and Geology Board for its review.
Determination: Today the Board's Executive Officer, Stephen M. Testa, stated:
Based on what you provided me, extraction of groundwater
is not deemed a surface mining operation under the Surface
Mining and Reclamation Act (SMARA). The City would
benefit to consult the statutes and regulations within the
state's Water Code.
In other words, the "interpretation" would conflict with California's Surface Mining
and Reclamation Act and the California Water Code. Mr. Testa's email is attached.
Request: Marina should promptly cancel the February 6 planning commission
meeting because the proposed "interpretation" is inconsistent with state law.
Marina has been seriously misled by the CPUC, Cal Am, and the City's outside
counsel. A simple review of the applicable California statutes would have prevented the
current mess. It also would have prevented the waste of public resources (time and
money) spent by Marina's outside legal counsel in promoting the proposed
EXHIBIT C
22
Bruce Delgado, Mayor
City of Marina
February 5, 2014
Page 2
"interpretation" to advance the political agendas of CaiAm and the CPUC.
1
Marina
deserved neutral and reliable advice, and Marina did not gel it. Marina has been done
a great disservice.
Please respond as soon as possible as to whether the February 6 meeting will
be cancelled. Marina should not waste more public resources on yet another meeting
to consider the proposed "interpretation." !hank you.
Very truly yours,
\l
til\ 0
Mol y Eriakson
Exhibits:
A. February 5, 2013 email from Stephen Testa, Executive Officer of the Surface
Mining and Geology Board
B. Information about the Surface Mining and Geology Board and Mr. Testa
cc: City council members
Layne Long, city manager
Planning commissioners
California Coastal Commission, Central Coast office
1
On January 22, 2014, Ms. Kathy Jenson, Marina's outside legal counsel
located in Orange County., told rne that she previously had two or more conference calls
with the CPUC's legal counsel and other persons to discuss this issue. Ms. Jenson told
me that she was not sure who all the other persons on the conference call were, or
what entities they represented. Ms. Jenson was responsible for the January 23
planning commission agenda item urging the commission to adopt the "interpretation"
sought by CaiAm and the CPUC, and she authored the February 6 planning report on
the same point Ms, Jenson has admitte.d that no case law supports her proposed
"interpretation" (Feb. 6 staff report, h 3) and she has not presented any statutory
authority for her ."interpretation," either,
EXHIBIT C
23
411
Date: We-dnes.dey, February 5, 2014 :32 AM
Good nv.Jrn)ng Ms. Erickson7
Bused on \\'bat )iWl providd m;;. cxtmCllon of grotmthvuter is. nut deemed a surt11cc mining npewtklll under th<.." Surf;tcc Mining anti
Rcchunullon Act The City wo.uid bc-net1t to consult rh.: sta!utcs and ;vithin the state's \Vater C:'oJ-;;;.
Regards.
Stephen M. Te.,la
&ecutire Clfliccr
State AJining anJ Geolog,)' Board
801 K S!reet, ,\'uitc :!Oi 5
Sacrcmu.:mo. CA 958/..J
i'!Jow;. (916) 322-!0S2
-mail.
CONflDENTlt\ 1 JTY NOTJCE.: n)JS cormm.uric.1-tivn inknd\.J tlt:l: fln 1h.:: ust (d'fht imJividtttt! ur entity tv which it i:;; .w:kln:sst:d. This: C1nlrdns
infomtatit'lt Dtatt of CnHfomia, Stale l'viinirtg nnd Board, Hbkh nwy h< pri-vikgcd, c\mtldenilal<!r.d ext:mpt from disdusure und;:.;-
applicahk bv.. itJdudntg the EkctronicCnrnmHnicatiom Pfiva.:y Act ! ftll\: rt.:a\kr uf lhif' \X)fllJll\lrlicatlnn ls nm the inttmkd r.:tipicm, }Qll arr:'h;;:n.:b)
1wtilled that m1)' di:;.sentination, :hs1ribntinn, or copying ufihi;; <.:tlttH11tmk<JtinH L ::.Hi'.'tiy prdilhiu:d.
EXHIBIT___:Ac...;.__
EXHIBIT C
24
Welcome to the State Mining & Geology Board (SMGB) hi!p:l/www.conservation.ca.gov/smgb/Pagesllndex.aspx
1 of 2
SMGB (lsmgbiPagesilndex.aspx)
Welcome to the State Mining & Geology Board (SMGB)
The SMGB represents the Statets interest in the de-velOpment, utHizaUon and conservation of mineral resources; reclamation of
mined lands: development of geologic and -seismic hazard information; and' to provide a forum for PubHc redress,
Note: if you v;ish tO be alerted to ihe SMGB's ongoing aCtivities, you can be added to the mili1ing iist and/or the list-Click
here FsmobJPaoesfcormetHons_.asoxl for more lnfO(fllatiort
News
......................... ...............
The SMGB's reoule:tions (!smgb/Misc!Documents!Ordinanr.eReaTxtOOflpe-rtaining to mandatory notification and
recertifica.tfcn:of amended surface mining ordinances were_ approved by the- Office of Administrative.Law on January 13, 2014
and wiilbe effective April 1, 2014
The SMGB proposes n-ew r-egulatlons pertaining to the dtisignation a-nd termination of d-esignation of minerai lands in the San
Bernardino Productlon-Consuniption The proPose-d requf.atory !anouage Usmgb/Mlsc!OocumEmts
!SanBemRecTextpdD has bee-n published in the California Reoufatorv Notice Reqlster 2014, No. 1-Z Usma-btMiscJDocuments
/01z2014SB.odt), and is available lor public C<lmmen! through february 11. 2014.
The SMGB proposes new regulaTions pertaining !o the and terrntnation of designation of mineral lands in the
Palm Springs Reg!ort The nronosed mguiatmy_!_ano:uaq:e Usmgb!Mlsc!Dncuments
IPS Proposed Regulation Texl.OO!l has been published in the California Reoulatory Notice Register2013, Volume No. 49-Z
{!smgb/Mfsc!DocumentsJ49z-2013.00fL and is a-vallab!e for public comment through January 2.0, 2014. The proposed
language reflects th-e n-eed_ for clarity betv;een such language and the accompanying plates (!smgb/MlscJOocuments:
/Plates 1 2%20Pa!mSnrings_pdfL and does not reflect any new p-roposed areas fur designation, or termiilatiori of
designation, when previously consideted and adopted by the SMGB in December
The SMG8's regulations asmgbiReoulationsiOocuments/14%2QRegula!ion%20Texrfi,2Qfclean)%20092313odfl pet1aining to
the de$ignatlonl and termination of designated, select mlne:rallands W'ith:in the San Gabriel Production-Consump-tion Reglon,
County of Los Angeles, we-re :approved by the Office of Administrative Law and win be effective January 1, 2014.
Although engineerin-g- geologists are nat specifically designated to conduct activities under- the Surface Mining and
Reclamation Ac! (SMARAJ, current standards of practice dictate that C<lrtifled engineering geologists, orsimilariy qua lifted
geo-pmfessionals-, shbufd be involved in certain Surface mining and reclamation tasks, SMGB Information Reoort 2013-10
(!smqb/reports/lnformationreports!Documents
/SMGB%20fR%202013-1 0
6
/a2Dlnfor:rnation%20Reoort"h,202013-1 0%20Roles
tilled "Roles of the EnRineertng Geologist under tile C8/ilomia Surface Mining and Reclamation Act (SMARA)" addresses !his
issue"
Inspection of a sUrface mining operation Is required not less than once each calendar year to d-etermine If the surface mining
operation is in compliance with the reqUirements of Public Resources Code (PRC) Chapter 9. commencing with Section 2710.
The Surface Mining Inspection Report (Form MRRC-1). as referred to in California Code of Regulations (CCR) Section
3504.519), was last revised in April 1997. At its July 11, 2013 regular business meeting, the SMGB approved !he revised
Surface Mining Inspection Report Form. !Form MRRC-1 Revised July 11. 2013) (/omr/SMARA%20Mines/Oocumen!s
IFINAL7-29-13-%20Fill%20and%20Print%20witho/o20Changes',{,20-%20MRRG1 cpdf)At its November 14, 2013. regular
bus!Jiess meeting. the- SMGB approved its- Annual R-eport Usmgb/reportstAnnual
0
/o20Reports!Docuinents
ISMGB%20AR%2012-13 pdQ,
The February 21, 2014 commfttee and regular business nieetlngs wi!l be held in Sacramento, CA. -Click hem Usmab!Pages
IFE82014.aspxl for the Agenda Notices. The associated reports will be available no later !han February 18. 2014.
NOTE: tf you wish to be alerted to thiS Board's ongoing activities, you can be adde:rlto the mailing Hst and/or thee-blast Hst
Click here (/srnqbJPagestconnect]ons,:aspxl for more information_
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Welcome to the State Mining & Geology Board (SMGB) http://www.conservation.ca.gov/smgb/Pagesllndex.aspx
2of2
SMGB Authorities
The- SMGB is composed of nine members appointed by the Governor, and confirmed b'y the Senate, 'for terms. The SMGB
serves as a regulatory, policy, and appeals_ body representing the State's interests in geolOgy, geologic and selsmalogic hazards,
conservation _of mineral and reclamation qf lands following surface mtning pctivit!es.
The SMGB operates wlthin the Department of ConsE?rvation, and is granted certa_in aUtonomous reSponslbilit!es and obligations
under several statures including the Alquist-Priolo Earthquake Fault Zoning Act, the Seismic Hazards Mapping Acl and the Surface
Mining and Rec;lamation Act. The SMGB's general authority is granted under Public Resources Code fPRC\ Sections 660-678.
(lsmgb/Misc!Documents/Enablers.pdfl Specifically, PRC Section 662{b) requites all SMGB members to "represent the general
public interest".
Most of the documents on this site are in. Adobe's Portable Document Format (PDF). Adobe makes a free reader available here.
!http: /JW\N'Vl! .adobe. com/praducts/acrobat/readstep2 . htm!)
State Mining & (jeology Board
Agenda & NotiCes 1/smgb/aqendaslPagesJt:alendar.aspx)
last Meeting Results (lsmgbiPaQes/last meeting r-esult.aspx)
Reports ({smgbJreoOrtS/Pageslreports.aspxl
Regulations Usmgb/Re-gulatlons!Pages!re-gulations.aspxl
Guidelines Usmgb!GuideUnes/Pages/guidelines.aspxl
Board Roster UsmgblboardrosterJPage-slboard rostet.aspx)
Document Policy (/smg blstaffreports2004/May/Documents/0513-3a.pdfl
Events flsmgbJPages/events.aspxl
Contact The Board (lsmgb/Pages/contactUs.aspx)
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Copyright 2013 Stale of California
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State Mining & Geology Board - Statutes and Regulations h!tp:/fwww.conservation.ca.gov/smgb/regulationsiPages/regula ...
1 of5
SMGB {lsmgb/Pages/lndex.aspx) > Regulations (lsmgb/Regulations
/Paqes/regulations.aspx)
Surface Mining and Reclamation Act of 1975 (SMARA)
SMARA. Statutes (!smgb/Regulations/Documents
/SMARA Statutes.pdf) SMARA Regulations {!smgb/Regulations
/Documents/SMARA %20Regulations%20Revised%201 0-19-12.pdf)
The Surface Mining and Reclamation Act (SMARA), Chapter 9,
Division 2 of the Public Resources Code, requires the State Mining
and Geology Board to adopt State policy for the reclamation of mined
lands and the conservation of mineral resources. These policies are
prepared in accordance with the Administrative Procedures Act,
(Government Code) and are found in California Code of Regulations,
Title 14, Division 2, Chapter 8, Subchapter 1.
The Surface Mining and Reclamation Act of 1975 (SMARA, Public
Resources Code,Sections 2710-2796) provides a comprehensive
surface mining and reclamation policy with the regulation of surface
mining operations to assure that adverse environmental impacts are
minimized and mined lands are reclaimed to a usable condition.
SMARA also encourages the production, conservation, and protection
ofthe state's mineral resources. Public Resources Code Section
2207 provides annual reporting requirements for all mines in the state,
under which the State Mining and Geology Board is also granted
authority and obligations.
21512014 i 0:40AM
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Stephen Testa, Executive Director, State Mining and Geology ... http://www.conservation.ca.gov/index/AboutUs/Pages/Stephen ...
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Index (IINDEX!Pagesllndex.aspxl >About Us (!index/AboutUs/Pages/aboutUs.aspxl
Stephen M. Testa was appointed Executive Officer of the
California State Mining and Geology Board in August 2005.
From 1976 until August 2005, he served as an engineering and
environmental consultant for a variety of international firms.
Immediately prior to his appointment as Executive Officer of the
SMGB, he also served since 2001 as a consultant and mine
inspector on behalf of the SMGB. Mr. Testa is the author of 11
books including Geological Aspects of Hazardous Waste
Management, The Reuse and Recycling of Contaminated Soils,
and Restoration of Contaminated Aquifers: Petroleum
Hydrocarbons and Organic Compounds . and Petroleum in the
Environment, and over 125 publications. He has served as an
instructor at USC and CSU Fullerton, and has provided
numerous workshops and technical presentations to federal and
state government agencies, universities, historical societies and
various professional associations. Mr. Testa is the
Past-President of the American Geological Institute (AGI) and the
American Institute of Professional Geologists (AIPG), and past
Editor-in-Chief of American Association of Petroleum Geologists
-Division of Environmental Geosciences' (AAPG-DEG's) peer review journal "Environmental
Geosciences," and the recipient of the AIPG's Martin Van Couvering Award, AAPG-DEG's Research
Award, and the Roy ShlemonGeology Mentor Honorarium for excellence in application of applied earth
science. Mr. Testa currently serves as Vice-Chair of the International Year of Planet Earth National
Committee, and on the Board of Directors for the Petroleum History Institute.
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Copyright 2013 State of California
215/2014 10:36 AM
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THOMAS K. PERRY (19041971)
DONALD G. FREEMAN
LAW OFFICES
Perry and freeman
SAN CARLOS BETWEEN 7.,.,. AND T ~
POST OFFICE SOX 805
TELEPHONE
AREA CODE 831
624-5339
Carmel-by-the-Sea, California 93921
FAX (831) 624-5839
David Burnett, Chair
Planning Commission
City of Marina
211 Hillcrest Avenue
Marina, CA 93933
February 4, 2014
RE: Interpretation of Marina Municipal Code Chapter 17.41.260, Surface
Mining and Reclamation Standards
Dear Chair Burnett and Commissioners;
The Monterey Peninsula Regional Water Authority respectfully urges you
to interpret the City of Marina Municipal Code, Chapter 17.41.260
("Ordinance") to include the extraction of water to determine its mineral
content as a surface mining operation under the Ordinance.
This matter arises from an effort to construct two exploratory
geotechnical borings (i.e., boreholes) on the Cernex property in order to test
the chemistry of groundwater extracted from the boreholes. This test is the
last of a series of tests conducted to establish existing groundwater
conditions for a hydrogeological analysis of the potential effects, if any, to
the Salinas Basin Groundwater Basin from the operation of source wells for the
desalination plant proposed to be developed by the California American Water
Company. This data is critical for the completion of a groundwater model
required for the Draft Environmental Impact Report for the Cal-Am desalination
project, which is being prepared by the California Public Utilities
Commission.
Cal-Am previously drilled three boreholes on the Cemex property for the
hydrogeological analysis following a determination by City staff that those
boreholes were consistent with mining operations pursuant to the Ordinance.
The only difference with the two new boreholes proposed now is that Cal-Am
would extract a de minimus quantity of water (approximately seven liters per
borehole) for testing Of mineral content. City staff thus seeks the Planning
Commission
1
s interpretation to determine if the Ordinance covers extraction of
water for mineral content testing.
A plain reading of the Ordinance's terms supports an interpretation that
the Ordinance does cover such activity. Under the Ordinance, surface mining
operations include exploration and prospecting activities. Section 17.41.260(B)
defines "exploration" or "prospecting" as "the search for minerals by
geological, geophysical, geochemical or other techniques, including, but not
limited to, sampling, assaying, drilling, or any surface or underground works
EXHIBIT C
30
David 8 u rnett
February 4, 2014
Page2
needed to determine the type,. extent or quality of minerals present." The
extraction of a de minimus quantity of water from a geotechnical borehole to
determine the mineral constituents of the water is, under the plain language of
the Ordinance, a drilling and sampling activity to determine the \\extent or
quality of minerals present.u The staff report for this matter indicates that
the City Attorney, Robert Wellington, and the City
1
s special counsel, Kathy
Jenson, support this interpretation.
If the Planning Commission agrees that this is a reasonable
interpretation of the Ordinance, the boreholes and de minimus water testing may
proceed in an expedited manner before the Snowy Plover nestihg season commences
on or about March 1st. Failure to install the boreholes before the nesting
season would likely delay the testing by approximately eight months until
November. Cal-Am has applied for a Coastal Development Permit for the boreholes
as a "back-up
11
measure, but that process will likely not allow the boreholes to
be drilled ahead of the Snowy Plover nesting season, and should not be
necessary because the construction of boreholes and water testing are
consistent with mining operations on the Cernex property.
The matter is critically important to the Monterey Peninsula and the
regional economy impacted by the water supply crisis. Alleged issues that are
not germane to the analysis should not complicate the simple matter of
interpreting the statute. Extraneous issues include those pertaining to the
California Environmental Quality Act and water rights. CEQA is not relevant to
the interpretation because an interpretation of a city code is not a
discretionary "projectrr to which CEQA applies. CEQA Guidelines, 14 Cal. Code
Regs 15378(b); Wollmer v. City of Berkeley (2009) 179 Cal.App.4th 933, 947-
948; Northwood Homes, Inc. v. Town of Moraga (1989) 216 Cal.App.3d 1197, 1206-
1207.
Likewise, the existence or sufficiency of rights for the extraction of
percolating groundwater is a matter for determination by the California
Superior Courts, and is not an issue that must be determined by the City prior
to interpreting the Ordinance. See City of Pasadena v. City of Alhambra (1949)
33 Cal.2d 908, 924 (trial court has jurisdiction to determine water rights).
Moreover, although not relevant to the interpretation of the Ordinance, the
fourteen liters of water that will be extracted by the two boreholes for
testing is entirely inconsequential to the health of the groundwater supply,
and in any case, the extraction would be deemed an overlying use of water that
is protected under the law. See City of Barstow v. Mojave Water Agency, 23
Cal.4th 1224, 1237, f.n. 7 ("Overlying rights are special rights to use
groundwater under the owner's property.") Further, the boreholes will be filled
and destroyed once the testing is complete so there can be no concern that the
boreholes will be used for any continued extraction of water.
In sum, this is a simple matter of interpreting the Ordinance for the
benefit of City staff so they can advise whether the Ordinance covers the
boreholes and water testing as a mining operation. The plain language of the
Ordinance supports an interpretation that these activities are mining
EXHIBIT C
31
David Burnett
February 4, 2014
Page 3
operations. The Authority therefore respectfully urges the Planning Commission
to interpret the Ordinance to include these activities.
Yours very truly,

Donald G. Freeman
Legal Counsel
Monterey Peninsula Regional Water Authority
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I
I
I
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33
3 Questions posed by Mayor Delgado Feb. 5, 2014, and answered by
Robert Maclean along with a Mr. William Hood email Feb 5 to Mayor
Delgado and Marina PC Chairperson David Burnett.
1) How is request to drill for extracting water consistent with Cemex'
active surface mining operation?
From: <Robert.Maclean@amwater.com>
Date: Wed, Feb 5, 2014 at 12:21 PM
Subject: Re: Bore hole update
To: Bruce Delgado <bdelgado62@gmail.com>
Hello Bruce,
I hope the below will help to respond to various concerns on the water issue:
CEMEX has an active groundwater well used to pump groundwater to wash the sand
from their mining activity. Cemex uses on average nearly 500,000 gallons of water daily
for the mining operations. So the extraction of water is a "mining" activity already going
on at CEMEX. CEMEX also samples and monitors the water quality from the
groundwater well for minerals as it is important to the performance of the sand mining
operation. The post sand washing residual water is discharged to a percolation pit on-
site to recharge back into the groundwater.
Cal Am's proposed boreholes are thus conducting a much smaller and consistent
activity as is already ongoing at the site. The water extracted from the boreholes will
be percolated back into the ground water and small water samples are grabbed for
laboratory analysis. CEMEX has requested and CAL AM has agreed to provide a
sample of the water from our boreholes so CEMEX can test the water for their own
mining operation purposes. The total amount of water to leave the site is 7 liters per
borehole.
2) Why is a surface mining muni code being used for water quality
assay?
From: <Robert.Maclean@amwater.com>
Date: Wed, Feb 5, 2014 at 10:26 AM
Subject: Re: Bore hole update
To: Bruce Delgado <bdelgado62@gmail.com>
Hi Bruce,
Here is a response on the mining muni code question:
When CAW applied for its original three boreholes, City Staff responded that no permit
was necessary and the project was exempt from CEQA under Chapter 17 (Surface
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34
Mining). Accordingly, when CAW consulted City Staff for the two currently proposed
boreholes, the expectation was that Chapter 17 would again govern because the
proposed activity is consistent with the active surface mining operation at the property.
3) Why wasn't approval sought sooner so to avoid being done in
haste? Why is Marina apparently being pressured at last minute for
this?
From: <Robert.MacLean@amwater.com>
Date: Tue, Feb 4, 2014 at 10:01 PM
Subject: Re: Bore hole update
To: Bruce Delgado <bdelgado62@gmail.com>
Hi Bruce,
As to the "last minute pressure" comments, perhaps a look at the timeline would be
helpful:
1. These two boreholes were submitted on 11/18 to Marina for review and direction.
2. Initial response received from City was that appropriate course would be to have the
additional borings done as part of the slant well project. This was not an acceptable
outcome as it would not provide data sought for the EIR.
3. Thanksgiving holiday.
4. At the 12/10 Hydrologist Working Group meeting -after discussing the City of Marina
bore hole delays, it was suggested Cal Am put CPUC legal consultant in contact with
Marina city attorney to help alleviate concerns. We proceeded in that direction.
5. CPUC and Marina had conference call on 12/16. Outcome of call was for CAL-AM
to prepare a presentation of the material for a follow-up CPUC/Marina call after holiday
break.
6. Marina shutdown for holidays from 12/23 to 1/6.
7. Presentation summary made to Marina in early January on conference call with
CPUC on the ordinance approach.
8. Needed 10 days to get on Marina PC meeting on Jan 23rd. PC deferred the issue at
the meeting on the 23rd.
Based on this sequence, there has been significant effort between the parties, although
admittedly much of it was probably not visible to the PC members.
As I am sure you are aware, similar borings in the County and State Parks were
processed in under two weeks.
I hope this timeline will help interested parties to gain a comfort that this has not been a
rushed or hurried process.
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35
4) Email From: William Hood <wshood37@yahoo.com>
Date: Wed, Feb 5, 2014 at 8:54PM
Subject: Comments on the JPA Mayors' Request to Seek Permit for Cal-Am under
City's Surface Mining Rule
To: "bdelgado62@gmail.com" <bdelgado62@gmail.com>,
"david. burnett454@sbcglobal. net" <david. bu rnett454@sbcglobal.net>
Cc: Ron Weitzman <ronweitzman@redshift.com>, Safwat Malek <samalek@aol.com>
Dear Mayor Delgardo and Chairman Burnett:
I am a retired environmental attorney who has closely followed the efforts
of Cal-Am and the Peninsula Mayors JPA to promote and support Cal-Am's
proposed water supply project for the Peninsula. In that regard, I have
criticized certain aspects of those efforts and have always been careful to
base my comments and opinions on publicly-known facts, and not on the
emotion of the moment.
The commentary in the Herald today by George Riley, a respected water
activist, clearly identifies mistakes made by Cal-Am with respect to seeking
a permit from your City to drill wells that would indicate the acceptability of
a Marina site for source wells for Cal-Am's proposed desalination plant.
These mistakes are unfortunate, and I understand why the Mayors have
contacted you to seek an alternative path to an expedited issuance of the
needed permit(s). Having been advised of your response, I feel it is
eminently fair and the right thing to do-- in that you acknowledge the
importance of intra-city cooperation, because all the cities must rely on
each other, and because you do not wish to be unfair to any option, and
you understand there are more than one, even in the face of administrative
mistakes that have been made. However, while I applaud the Mayors for
their creativity, the City standards upon which they are relying to seek
expedited permit action from Marina are simply not relevant and cannot be
utilized for that purpose.
I am referring to the City's Surface Mining and Regulations Standards,
found at Chapter 17.55 of the City's Municipal Code (it is therein noted that
these standards are based upon the California Surface Mining and
Reclamation Act, Cal. Public Resources Code, Chapter 29). It is difficult
for me to see the basis within the City Standards that the Mayors are
relying upon as applicable to their request. Perhaps it is this:
EXHIBIT C
36
In the definitions paragraph under the Standards, a "mineral" is defined in
pertinent part as "any naturally occurring chemical element or compound".
Technically, water is a chemical compound composed of hydrogen and
oxygen, and water is not specifically excluded from the definition, as is
petroleum and natural gas. So it could be argued that all references to
"minerals" in the Standards can include water, thus leading to a request for
a permit to extract water from the City. But, at worst, i believe this
argument to be wrong, and, at best, it relies upon unclarified ambiguities.
There are generally accepted rules for interpretation of ambiguous terms or
phrases in public documents:
1. Where such ambiguities exist in a document, the ambiguities must be
first be interpreted by considering commonly and reasonably applied
definitions of those terms or phrases.;
2. The document must then be examined to determine if a particularly
interpretation of ambiguous terms is consistent with the stated intent and
purpose of the document. And finally,
3. If the intent and purpose are not stated clearly or don't appear to cover
the issue at hand, the overall context of the document must be examined
and the interpretation that is most consistent with that context must be
adopted.
In this case:
1. The very commonly accepted definition of a "mineral" is a "naturally
occurring substance that is SOLID, stable at room temperature and
represented by a chemical formula (e.g., Sand, Si02)". As indicated
above, it is possible to interpret the Standards' definition of "Mineral" as just
a "naturally occurring chemical element or compound"., that would
accurately describe water. So this step does not clarify the issue.
2. Looking at the intent and purpose paragraph of the Standards, there are
references to "surface mining" extraction of minerals and a commitment to
reclamation. Neither of these aspects apply to deep water wells that
minimally disturb the surface, are almost entirely underground and require
little or no surface reclamation. This analysis provides a reasonable case
that the Standards are not meant to apply to water.
EXHIBIT C
37
3. The essence of the context of the Standards is contained in the
descriptions of "surface mining operations". Those operations refer to
removal of overburden, exposing seams of naturally occurring minerals for
extraction, followed by reclamation of affected surface soils and disposal of
mine waste. All of these terms very strongly indicate the type of solid
mineral removal utilized in strip mining, as for example of coal, in the
Southeast and parts of the West. They do NOT apply at all to the
"extraction" of water from underground aquifers by the drilling of vertical, or
even slant wells to great depth.
All in all, the inescapable conclusions is that both the Standards' intent and
content do not apply to extraction of water and cannot be utilized by the
City and its Planning Commission as a vehicle to assist the Mayors and
Cal-Am in their quest for expedited permitting of source water wells
drilling. Rejecting that quest on this basis is not unfair or does not
represent an intent to show favoritism to one water supply option,over
another, but is required by a fair reading of the City's own rules.
EXHIBIT C
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39
From: "Testa, Stephen@DOC" <Stephen.Testa@conservation.ca.gov>
Date: February 6, 2014, 5:18:47 PM PST
To: "Shimko, Anna" <Anna.Shimko@sedgwicklaw.com>
Cc: Eric Zigas <EZigas@esassoc.com>
Subject: RE: Clarification
Dear Ms. Shimko:
It is my understanding that portions of the language set forth below is misleading, notably, ''This
places this activity within the statutory definition of "prospecting and exploratory activities" and
thus, it would be considered "surface mining operations." The proposed activity does not come
under the purview of the Surface Mining and Reclamation Act (SMARA).
That being said, I concur that 1) the SMGB is the SMARA lead agency for the City of Marina
but has no permitting authority and would not need to issue any approvals for the drilling of
boreholes and water testing, and 2) such activity does not conflict with the approved
Reclamation Plan for the CEMEX -Lapis surface mining operation (CA Mine ID #91-27-0006)
located in the City of Marina. Permitting authority in regards to the City's Zoning Ordinance rest
with the City.
I trust this clarifies my earlier email correspondence to Ms. Erickson.
As provided by Ms. Erickson:
The Marina municipal code adopted portions of the SMARA. The Marina staff is proposing that
the planning commission "interpret" the municipal code sections on surface mining to include
"the extraction of water." The staff report says this (at page 9 of the attached pdf; yellow
highlights mine):
It is noted that "natural gas" and "petroleum" are excluded from the Marina definition
of "mineral' but no mention is made of "water" which leads to an interpretation that water was
intended to be included within the definition of "mineral'" by the drafters of the Code.
Staff believes that this exploratory boring to pump out water to determine mineral content
falls under
the definition of"surface mining operations." While the purpose of the boreholes may not fit
the
colloquial definition of mining operations, the plain language of the MMC indicates that this
type of
activity likely falls under the definitions. The purpose of pumping the water is to "determine
the
type, extent or quality of minerals present" in each respective test sample. This places this
activity
within the statutory definition of "prospecting and exploratory activities" and thus, it would
be
considered "surface mining operations."
EXHIBIT C
40
Stephen M. Testa
Executive Officer
State Mining and Geology Board
801 K Street, Suite 2015
Sacramento, CA 95814
Phone: (916) 322-1082
E-mail: stephen. testa@conservation.ca. gov
www.conservation.ca.gov/smgb
CONFIDENTIALITY NOTICE: This communication is intended only for the use of the
individual or entity to which it is addressed. This message contains information from the State
of California, State Mining and Geology Board, which may be privileged, confidential and
exempt from disclosure under applicable law, including the Electronic Communications Privacy
Act. If the reader of this communication is not the intended recipient, you are hereby notified
that any dissemination, distribution, or copying of this communication is strictly prohibited.
-----Original Message-----
From: Shimko, Anna [mailto:Anna.Shimko@sedgwicklaw.com]
Sent: Thursday, February 06,2014 5:02PM
To: Testa, Stephen@DOC
Cc: 'EZigas@esassoc.com'
Subject: Clarification
Dear Stephen,
Thank you for discussing with us the issues concerning the City of Marina's hearing this evening
to interpret its zoning ordinance requirements. Based upon our conversation, it appears that your
email of yesterday to Molly Erickson may not fully express your views and is subject to being
taken out of context. Our understanding is that the State Mining and Geology Board, as the
SMARA lead agency for the Cemex operations within Marina, would not need to issue any
approvals for the drilling of boreholes and water testing (no more than 10,000 gpd would be
extracted, most water would percolate back into the site and only 14 liters would be removed for
testing) because such activity does not conflict with the relevant approved Reclamation Plan. It
remains the purview of the local land use agency, the City of Marina, to interpret its zoning
regulations and decide whether any permits are required for the activity. We would appreciate
confirmation of our understanding by return email. Thank you.
EXHIBIT C
41
MARINA COAST WATER DISTRICT
11 RESERVATION ROAD, MARINA, CA 93933-2099
Home Page: www.mcwd.org
TEL: (831) 384-6131 FAX: (831) 883-5995
February 6, 2014
HAND-DELIVERED
Mr. David Burnett, Chair
Marina City Planning Commission
C/0 Theresa Szymanis, City Planning Services Manager
City of Marina
211 Hillcrest Avenue
Marina, CA 93933
Re: February 6, 2014 Special Meeting on Action Item to provide a requested
interpretation of MMC Section 17.41.260, at 6:30PM
Dear Mr. Burnett:
DIRECTORS
THOMAS P. MOORE
President
JAN SHRINER
Vice President
HOWARD GUSTAFSON
WILLIAM Y. LEE
PETERLE
The following is being submitted on behalf of the Board of Directors of the Marina Coast
Water District:
As shown in the attached email dated January 10, 2014, from the City Special CEQA
Legal Counsel, Kathy Jenson, to Theresa Szymanis, City Planning Services Manager,
Eric Zigas, Environmental Science Associates (ESA), who is the CPUC EIR consultant
on California American Water Company's (CAW) new desalination project, and Anna
Shimko, ESA's CEQA attorney. As the CPUC's EIR consultant, ESA has requested the
City staff to submit the above-referenced interpretation request to your Commission.
Given that email, the Commission should assume that the real party or applicant
seeking the interpretation is ESA and not City staff. Given that Ag Land Trust has
already publicly stated that it intends to sue the City should the City allow CAW to go
forward with drilling the test borings and taking the water samples, it would seem
prudent that the record be clear that ESA, and not the City staff, is requesting the
interpretation. Confirming that the request came from ESA, and not City staff, could
potentially preserve any rights the City may have to seek indemnity from ESA for the
costs to defend any lawsuit against the City arising from this proposed action.
The Commission's posted agenda for the Special Meeting states, "Specifically, the
Commission is asked whether or not the exploratory extraction of water for the purpose
of determining its mineral content is a 'surface mining operation' under MMC Section
17.41.260B." Ms. Jenson in her January 10, 2014 email states, "Anna [Shimko, ESA's
attorney] explained that after looking at the SMARA Ordinance, she believes that the
two proposed borings fit within the scope of 'Surface Mining Operations' as defined in
1
I
I.
EXHIBIT C
42
Marina Muni Code Section 17.41.260 because it constitutes 'exploratory activities."'
Therefore, the real applicant's own attorney has already agreed that the proposed
drilling and extraction of water for water quality testing would require a Coastal
Development Permit. MCWD understands that CAW has already applied to the City for
a Coastal Development Permit, but that is not what is currently before the Commission.
Since ESA did not want CAW to undergo the normal Coastal Development Permit
process, Ms. Shimko proposed a different approach as stated in Ms. Jenson's email as
follows:
"If the planning commission agrees with Anna's suggested interpretation, then
the two additional borings would be within the scope of the existing [CEMEX]
mining operation and no city approval would be needed.
If the Planning Commission does not concur with the interpretation, then a
Coastal Development Permit would be necessary. Cal Am would have to apply
fora COP."
However, that different approach is not disclosed in the Commission's Special Meeting
agenda.
MCWD does not have copies of CEMEX's existing mmmg permit and approved
reclamation plan to determine whether the two new drillings to extract water samples
comes within CEMEX's permitted mining activities. MCWD has not seen any written
determination by City staff as to what provisions within CEMEX's existing mining permit
and approved reclamation plan cover the proposed drilling and water sampling. MCWD
is unaware whether the current volume of pumping by CEMEX on its property would
permit extraction of the volume proposed for the CAW boreholes while maintaining
compliance with the 500 afy limit on extraction established by the 1996 Annexation
Agreement to which MCWD and the City of Marina are parties.
The description of the proposed activity as merely constituting "additional borings" is
somewhat misleading. The two additional "borings" will extract core samples, but the
primary purpose of the "borings" is to drill down 300 to 350 feet, install a temporary well
casing to prevent the hole from collapsing, pump out some 10,000 gallons of water per
hole, and take water samples for testing.
MCWD has not had time to determine whether the proposed activity constitutes a "test
well" under applicable law. City staff would be required to make that determination and,
if the proposed action constitutes a test well, require that CAW comply with all
applicable requirements, including well closing and sealing requirements.
MCWD also understands that CAW has already applied to the City for a permit to drill a
slant well test well on the CEMEX property, which application is proceeding separately.
2
EXHIBIT C
43
Regarding the 1996 Annexation Agreement referred to above, MCWD, the City of
Marina, the Monterey County Water Resources Agency (MCWRA), J. G. Armstrong
Family Members, and RMC Lonestar, the predecessor in interest to CEMEX, signed the
1996 Annexation Agreement and Groundwater Mitigation Framework for Marina Area
Lands. The 1996 Agreement has two separate but related purposes as enumerated in
Section 1.1. The first purpose "is to help reduce seawater intrusion and protect the
groundwater resource and preserve the environment of the Salinas River Groundwater
Basin through voluntary commitments by the Parties to limit, conserve and manage the
use of groundwater from the Salinas River groundwater basin." The second purpose
was to address annexation issues. To meet that first purpose, Section 7.2, Quantity
Limitations, states, "Commencing on the effective date of this Agreement and
Framework, Lonestar shall limit withdrawal and use of groundwater from the Basin to
Lonesta('s historical use of 500 afy of groundwater." [Emphasis added.]. Furthermore,
Section 7.4.5, Additional Annexation Fee for Change in Water Use, provides for
increased fees if use of water on the property changes from industrial or agricultural
uses. That means that Lonestar (now CEMEX), the City of Marina, the MCWRA, and
MCWD are contractually obligated to prohibit anyone (including CAW) from (1)
extracting more than 500 afy on the property, (2) using extracted water for purposes
other than industrial or agricultural, and (3) exporting any groundwater off the CEMEX
property.
As just recently re-highlighted in a Monterey Herald article on the depositions taken in
the Regional Desalination Project (RDP) litigation initiated by CAW, MCWD incurred
some $20 million in expenses to move the RDP forward based upon assurances by
both CAW and MCWRA and the signing of three-way agreements approved by the
CPUC. MCWRA repudiated those CPUC-approved agreements and, based upon that
repudiation, CAW was able to obtain permission from the CPUC to withdraw from the
RDP. So far, CAW and MCWRA have succeeded in evading their obligations to make
MCWD whole for its RDP expenditures. A large part of MCWD's $20 million in RDP
expenses was funded from rates paid for by MCWD's City of Marina water customers
and MCWD is vigorously pursuing recovery of those expenses on those customers'
behalf.
Please be assured that the MCWD is not trying to obstruct the hydrogeological study
process. This very hasty and expedited process has given very little time for MCWD
and the public to obtain the necessary information to ascertain what is being requested
and the legal and factual basis for that request.
MCWD requests the following of the Planning Commission:
Any interpretation regarding the proposed two new borings, drillings, and water
sampling is strictly limited to what City staff characterizes as the "two additional
borings" and not in any way apply to the slant-well test well application.
Any such interpretation is strictly limited in application to the CEMEX property
and not to any other property with the City's jurisdiction.
3
I
' I
EXHIBIT C
44
Any such interpretation clarify that the interpretation is strictly limited to
withdrawals of water on the CEMEX property that do need exceed the 500 afy
limit under the 1996 Annexation Agreement.
Require as a condition of this Action Item that CAW provide all information and
data developed or derived from these two new drillings, the core samples, and
the water quality tests to MCWD and the interested public at no cost.
Require assurances from the applicant that there will be no negative impacts to
the 180-ft and 400-ft aquifers as a result of this Action Item.
MCWD respectfully thanks the Commission for taking our comments into consideration
and making the required determination either for or against this proposed new drilling
activity based upon an objective review of the applicable law and a complete factual
record.
Sincerely,
t ~ e e
lnterim General Manager
Enclosures (2)
4
EXHIBIT C
45
REEL 3404PAGE 750
ANNEXATION AGREEMENT AND GROUNDWATER MITIGATION FRAMEWORK
FOR
MARINA AREA LANDS
SUBJECT: Management and Protection of Salinas River Groundwater
Basin; Annexation of Marina Area Lands To zones 2 and 2A
of the Monterey county Water Resources Agency
1 PURPOSE AND AUTHORITY.
1.1. Purpose. The purpose of this Agreement and
Framework is to help reduce seawater intrusion and protect the
groundwater resource and preserve the environment of the Salinas
River Groundwater Basin through voluntary commitments by the
Parties to limit, conserve and manage the use of groundwater from
the Salinas River groundwater basin, and to provide the terms .and
conditions for the annexation of certain territory in the Marina
area to the Monterey County Water Resources Agency's benefit
assessment Zones 2 and 2A as a financing mechanism providing
additional revenues to the Monterey County Water Resources Agency
to manage and protect the groundwater resource in the Salinas River
Groundwater Basin and to reduce seawater intrusion.
1.2. Authority. This Agreement and Framework is
entered into under the authority of the Agency Act, the California
Water Code, and the California Government Code.
2. DEFINITIONS AND DESIGNATIONS. The following definitions
and designations apply to this Agreement and Framework:
2.1. Parties.
2 .1. 1. Marina coast Water District ( "MCWD" l A
political subdivision of the State of California, located in
Monterey county, governed by MCWD's Board of Directors.
2.1.2. Monterey County Water Resources Agency
I"MCWRA"l. A water and flood control agency created by the state
of California, with jurisdiction coextensive with Monterey County,
governed by the Monterey county Water Resources Agency Board of
Supervisors.
2.1.3. J. G. Armstrong Family Members
<"Armstrong"). The owners of the Armstrong Ranch in the Marina
area of Monterey County.
2.1.4.
general partnership and
Marina area of Monterey
l2400\004\4D-MOA34.026:022096134
RMC Lones tar ( "Lonestar" l . A
owner of the Lonestar property
County.
1
California
in the
EXHIBIT C
46
REEL 3404PAGE 751
2.1.5. city of Marina C"City"l. ---An incorporated
municipality within Monterey County, organized and operating under
the laws of the State of California, governed by its city Council.
2.2. AFY. Acre-feet per year.
2.3. Aaencv Act. MCWRA's enabling legislation adopted
by Chapter 1159 of the Statutes of 1990, and Chapter 1130 of the
statutes of 1991, set forth in full in West's California Water Code
Appendix, Chapter 52.
2.4. ArmStrong Ranch. About 1850 acres of land in the
Marina area, as shown on Exhibit "C," about 322 acres of which is
within the city of Marina, plus an additionar-150 acres not shown
on Exhibit "C" which is already in the Zones.
2.5. Basin. The Salinas River Groundwater Basin.
2;6. BMP. The MCWRA's Basin Management Plan for the
Salinas River Groundwater Basin.
2.7. ggQA. The California Environmental Quality.Act,
Public Resources Code sections 21000 and following.
2.8. CSIP. The Castroville Seawater Intrusion Project,
a distribution system project already approved and being
implemented by MCWRA to provide reclaimed water for irrigation in
the castroville Area of Monterey County.
2.9. Effective Date. Subject to paragraph 4, this
fully effective when executed by Agreement and Framework shall be
all the Parties.
2.10. Exhibits.
"A" The general geographic relationship of
MCWD, Armstrong and Lonestar to the Basin and to the zones is shown
on the diagram attached to this Agreement and Framework as
Exhibit "A."
"B"
"C"
non
"E"
"F"
"G"
12400\004\40-MOA34.026:022096/34
MCWD service area to be annexed
Armstrong Ranch land to be annexed
Lonestar property to be annexed
Calculation of Incremental Cost for
Tertiary Treated Water
Armstrong Areas Reserved For Transfer to
MCWD
MRWPCA Addendum
2
EXHIBIT C
47
REEL 3404PAGE 752
. 2.11. FEIR. The Final Environmental Impact Report for
the Salinas Valley Seawater Intrusion Program (February 1992).
2.12. Fort Ord. The land within the boundaries of the
former Fort Ord Military Reservation.
2.13. Lonestar Property. A parcel containing about
400 acres of land in the Marina area, as shown on Exhibit "D."
2.14. Marina Area. Lands served by, adjacent to, or
within the sphere of influence of MCWD.
2.15. MCWD Water Plans. The Urban Water Master Plan and
the Urban Water Shortage Contingency Plan adopted by MCWD.
2.16. MCWRA/MRWPCA Agreement. Monterey County Agreement
No. A-6078, "Agreement Between The Monterey County Water Resources
Agency And The Monterey Regional Water Pollution Control Agency For
Construction And Operation Of A Tertiary Treatment System," dated
for reference purposes June 16, 1992, as amended on or before
December 1, 1995.
2.17. Mitigation Plan. A plan for a potable water
supply capable of mitigating the effects of seawater intrusion and
providing a long-term potable water supply to MCWD's distribution
system.
2.18. Mitigation Plan Implementation. The Mitigation
Plan shall be considered "implemented" upon the delivery of potable
water to MCWD's distribution system from a completed, long-term,
potable water supply system, after system testing has been
successfully completed.
2.19. Agreement and Framework. This Annexation
Agreement and Groundwater Framework for Marina Area Lands.
2.20. Monterey Regional Water Pollution Control Agency
C"MRWPCA"l. A joint powers authority providing sewage treatment
service to its member entities in Northern Monterey County,
governed by its Board of Directors.
2.21.. MRWPCA Annexation Agreement. "Annexation
Agreement Between The Marina County Water District And The Monterey
Regional Water Pollution Control Agency," dated April 25, 1989, as
amended on or before December 1, 1995.
2.22. 1990 Agreement. Monterey county Agreement
No. A-5471, "Preliminary Agreement Between United States of
America, Marina Coast Water District, and Monterey County Flood
Control and Water Conservation District," dated July 12, 1990.
2.23. SVRP. The Salinas Valley Reclamation Project, a
project already approved and being implemented by MCWRA, in
12400\004\4D-MOA34.026:022096134 3
EXHIBIT C
48
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cooperation with MRWPCA, to reclaim water at the MRWPCA's regional
treatment plant, for irrigation through the CSIP.
2.24. Zones. Zones 2 and 2A of the MCWRA, which are the
zones of benefit and assessment for the MCWRA's Nacimiento and
San Antonio reservoirs.
3. FACTS AND CIRCUMSTANCES. This Agreement and Framework is
entered into with regard to the following facts and circumstances:
3.1. The MCWRA has approved fourteen other annexations
to Zones 2 and 2A since 1991. Like other areas which have been
annexed, the Marina area is within the Salinas River Groundwater
Basin, has been using groundwater for many years, and has strong
claims to groundwater rights. Since the Fort Ord annexation in
1993, the Marina area is surrounded on three sides by Zones 2 and
2A, and by Monterey Bay to the west.
3.2. MCWRA agreed in the 1990 Agreement to "encourage
and support" annexing MCWD to Zones 2 and 2A. MCWD has worked for
about thirteen years with the MCWRA on plans for a reliable, long-
term water supply for the northern Basin area, including the Marina
area and Fort Ord. MCWD
1
s participation has included payment of
money to assist the planning effort. As part of the 1990
Agreement, MCWD paid for survey and planning work for the long-term
water supply effort. Sums paid by MCWD to MCWRA total over
$400,000. The work for which MCWD paid will be useful for the
Mitigation Plan.
3.3. MCWD, city, Armstrong and Lonestar claim the right
to use groundwater from the Basin, to the full extent provided by
law. MCWD takes water from wells owned and operated by MCWD and
drilled into the "180-foot", "400-foot" and "900-foot" aquifers in
the Basin. About ninety-eight percent of potable water used
currently by MCWD comes from the 900-foot aquifer. MCWD's current
maximum pumping capacity is 5,800 gpm (9,350 afy) of potable water
and 1,100 gpm (1,770 afy) of other usable water. Allowing for
routine maintenance and providing a contingency factor for
emergency shutdown, MCWD's current estimated operational pumping
capacity for potable water is 3900 gpm (6,000 afy).
3.4. MCWD agreed in writing in 1988 to cooperate with
the City in providing water service to the Lonestar property and
the Armstrong Ranch. A coordinated and centralized water supply
for the Marina Area in furtherance of that 1988 agreement will
facilitate management and protection of the groundwater resource in
the Marina Area. Armstrong claims the right and ability to use not
less than 920 afy of potable water from the Basin to provide
potable water service to the Armstrong Ranch, and the right to use
water for agricultural purposes. MCWD currently supplies some
water to the Armstrong Ranch. The Armstrong Ranch will need
reclaimed water for golf course purposes, park purposes and such
other general uses as may be required by any agency having
l2400\004\4D-MOA34.026:022096/34 4
EXHIBIT C
49
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jurisdiction as a condition of development. The Lonestar property
currently uses about 500 afy of groundwater from the Basin.
3.5. The MCWD Water Plans are based on a total need
within MCWD's current boundaries of 3,020 afy of water for potable
uses and about 280 afy additional water suitable for irrigation,
and on additional projected need by the rest of the Marina area as
specified in the MCWD Water Plans.
3.6. MCWRA has previously annexed Fort Ord into Zones 2
and 2A. The September 1993 Agreement for that annexation provides
that until implementation of a project to provide a substitute
supply, a maximum of 6,600 afy may be withdrawn from the Basin for
use on Fort Ord lands, provided no more than 5,200 afy are
withdrawn from the 180-foot aquifer and 400-foot aquifer. The USA
received a credit against annexation fees for about $400
1
000 paid
under the 1990 Agreement.
3.7. Pursuant to paragraph 12 of the MRWPCA Annexation
Agreement, MCWD has the right to obtain from the MRWPCA, at the
regional treatment plant, treated wastewater for reuse by the MCWD
in quantities equal to the volume of MCWD wastewater treated by
MRWPCA and such additional quantities as from time to time are not
committed to any other users for beneficial use. MCWD's cost for
such treated wastewater will be the MRWPCA's incremental cost over
secondary treatment, to meet applicable local, state and federal
requirements for water reuse.
3.8. The MCWRA/MRWPCA Agreement provides that the SVRP
shall be designed and built for tertiary treatment of wastewater to
be used for irrigation through the CSIP. That Agreement also
mentions possible future interties with other agencies. The
MCWRA/MRWPCA Agreement commits flows of wastewater to the CSIP as
provided in Article IV and Exhibit c of that Agreement, excepting
flows taken by MCWD pursuant to the MRWPCA Annexation Agreement.
4. REQUEST FOR ANNEXATION.
4.1. Request by MCWD. Armstrong. and Lonestar.
Execution of this Agreement and Framework shall be deemed to be a
formal and joint request by the signatories that the MCWRA's Board
of Supervisors exercise their authority under section 7 of the
Agency Act (West's California Water Code App. 52-7) to annex to
the Zones the lands described in Exhibits "B", "C" and "D" to this
Agreement and Framework, on the terms and conditions of this
Agreement and Framework as executed by the requesting signatories.
No other terms or conditions shall apply to any annexation under
this Agreement and Framework without the written agreement of all
the Parties affected by the change.
4.2. Request by McwD. MCWD is requesting immediate
annexation of all the lands described in Exhibit "B." The lands to
be annexed include the land which contains Olson School and the
Methodist Church.
12400\004\4D-MOA34.026:022096134 5
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50
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4.3. Request by Armstrong. Armstrong'is requesting
annexation of its land described in Exhibit "C", which annexation
would t ~ e effect as provided in paragraph 6.2 of this Agreement
and Framework.
4.4. Request. by Lonestar. Lonestar is requesting
immediate annexation of its land described in Exhibit "D", which
annexation would take effect as provided in paragraph 7.3. of this
Agreement and Framework.
4.5. Effect of Request. Other than to serve as a
formal annexation request pursuant to section 7 of the Agency Act,
this Agreement and Framework shall have no effect until its
execution by the MCWRA.
5. TERMS AND CONDITIONS--MCWD.
5 .1. Quantity limitations on MCWD's groundwater
pumping.
5.1.1. Commencing on the effective date of this
Agreement and Framework and continuing until Mitigation Plan
Implementation, MCWD will limit its withdrawal of potable
groundwater from the Basin for land in the Marina area and outside
the former Fort Ord Military Reservation to 3,020 afy of potable
groundwater, and only such additional quantities as are permitted
by this paragraph 5.1. MCWRA's groundwater resource planning for
the existing MCWD service area will be based on the latest
information and projections contained in the MCWD Water Plans,
using 3,020 afy as a planning guideline for potable water use.
5.1.1.1. After compliance with all applicable
requirements of law, including but not limited to CEQA, MCWD may
improve the interconnection between the MCWD water system and the
water system serving Fort Ord, to provide for joint, conjunctive
and concurrent use of all system facilities to serve Fort Ord and
other areas served by MCWD, and the other Parties will cooperate on
MCWD's increased withdrawal of potable groundwater by up to 1,400
afy from the 900-foot aquifer to enable the,increased withdrawals
from 5200 afy to 6600 afy for use on Fort Ord, as provided in
paragraph 4.c. of the September 1993 Agreement between The United
States of America and the MCWRA.
5.1.1.2. If the Armstrong property has been
annexed to the zones, the other Parties will cooperate on MCWD's
increased withdrawal of up to 920 afy from the Basin, on the
condition that such withdrawals shall be used only to provide water
to the Armstrong Ranch and, to the extent that such water is
requested and accepted by Armstrong, such use shall in its entirety
be applied to the satisfaction of Armstrong's entitlement under
paragraph 6.9. of this Agreement and Framework.
5.1.1.3. If the Lonestar property has been
annexed to the Zones, the other Parties will cooperate on MCWD's
12400\0CW\4D-MOA34.026:022096/34 6
EXHIBIT C
51
REEL 3404PAGE 756
increased withdrawal of up to 500 afy from the Basin, on the
condition that such withdrawals shall be used only to provide water
to the Lonestar property, and, to the extent that such water is
requested and accepted by Lonestar, such use shall in its entirety
be applied to the satisfaction of Lonestar's entitlement under
paragraph 7.2. of this Agreement and Framework.
5.1.2. Conditioned upon MCWRA's compliance with
paragraphs 5.1, 5.2, 5.3., 5.5, 5.7, 8.1, 8.2 and 8.3, after
Mitigation Plan Implementation, MCWD will be governed by such
limitations on the withdrawal of water from the Basin as shall be
included in the terms of the Mitigation Plan.
5.2. No objection by MCWRA to MCWD withdrawals except
pursuant to section 22 of Agency Act. The MCWRA shall not object
to any withdrawal by MCWD which is mentioned in section 5.1 above,
except in compliance with section 22 of the Agency Act. All
groundwater withdrawn from the Basin by MCWD may be used only
within the Basin.
5.3. Management of 900-foot aquifer. The Parties agree
that the "900-foot" aquifer should be managed to provide safe,
sustained use of the water resource, and to preserve to MCWD the
continued availability of water from the
11
900-foot" aquifer. The
Parties will work to include in a Mitigation Plan the concept that
water from the Mitigation Plan which costs less than the cost of
desalinated water should be the primary source of potable water for
the lands described in Exhibits "B", "C", and "D", and wells in the
"900-foot" aquifer should be a secondary source, if seawater
intrusion is shown to be affecting the "900-foot" aquifer by
credible scientific evidence. The Parties will also work together
on measures to protect the
11
900-foot" aquifer.
5.4. Compliance with CEOA and other applicable laws.
MCWD's participation in the Mitigation Plan or any other
alternative water supply plan is subject to compliance with all
applicable laws, including but not limited to CEQA, and to review
and approval by the MCWD.
5.5. MCWD development of alternative water supplies.
MCWRA agrees that it is appropriate for MCWD to plan for and
develop any new water supplies, including but not limited to
wastewater reclamation and desalination, that help to meet MCWD's
needs, except that the MCWRA believes that the unilateral
development of water by MCWD would not be appropriate from any of
the following sources: the 180-foot and 400-foot confined aquifers
in the Pressure Area of the Salinas Valley Groundwater Basin, the
unconfined aquifer in the three other areas in the Salinas Valley
Groundwater Basin (East side, Forebay, and Upper Val.ley), and the
Salinas River and its tributaries.
5.6. MCWD payment to MCWRA for tertiary treated water.
In satisfaction of paragraph 12 of the MRWPCA Annexation Agreement,
MCWD will pay to MCWRA the incremental cost over secondary
12400\004\4D-MOA34.026:022096134 7
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52
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treatment to receive tertiary treated water from MRWPCA's planned
tertiary treatment facilities at its regional treatment plant. The
Parties agree that this cost shall be calculated as set forth on
Exhibit "E" to this Agreement and Framework.
5.7. MCWD right to receive tertiary treated water from
MRWPCA plant.
5.7.1. Pursuant to the MRWPCA Annexation
Agreement, on or after the date of first delivery of water from the
CSIP and upon compliance with all then-applicable requirements of
law, including but not limited to CEQA, MCWD shall have the right
to receive tertiary treated water from the tertiary treatment plant
constructed and maintained pursuant to the SVRP, as provided
herein.
5.7.2. The CSIP requires maximum available
reclaimed water flows from the SVRP during the months of April
through September to replace historically high uses of groundwater
during those months, and to thereby maximize environmental
benefits. Accordingly, during the months of April through
September, MCWD agrees to defer taking any water over 300 afy it is
entitled to take from the tertiary treatment plant under the MRWPCA
Annexation Agreement. MCWD will also defer taking the first 300
afy of such flows to which it is entitled, if and after MCWD
constructs a reservoir to store replacement winter flows.
5.7.3. During the months of October through
March, MCWD may take the full amount of the reclaimed water to
which it would, under the MRWPCA Annexation Agreement, have first
priority during those months, together with an amount of water
equal to the amount deferred during the immediately preceding
,months of April through September under paragraph 5.7.2. above.
MCWD will take the deferred amount in equal or approximately equal
monthly portions spread throughout the October-March period, or as
otherwise agreed in writing by the MCWD and the MCWRA.
5.7.4. If MCWD's ability to supply reclaimed
water is interrupted for any reason, MCWD and MCWRA will act
jointly and diligently, together and with MRWPCA, to mitigate
possible damage to users of such flows, including possible interim
use of MCWD's wells to provide a substitute source of water.
5.8. Effective date of annexation. The annexation to
zones 2 and 2A of the MCWD lands described in Exhibit "B" shall
take effect immediately upon approval of the annexation by the
MCWRA Board of supervisors on the terms of this Agreement and
Framework, or, if the annexation is approved by ordinance, then
thirty (30) days after adoption of an ordinance approving the terms
of this Agreement and Framework.
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5.9. Annexation fee.
5.9.1. Amount of MCWD annexation fee. To annex
all the land described in Exhibit "B" to the Zones, MCWD shall pay
to MCWRA an annexation fee in the amount of Two Million Eight
Hundred Forty-Nine Thousand Four Hundred and Ten Dollars
($2,849,410.00) (based on 1750 acres in the MCWD service area and
water extraction use of 3020 afy). MCWD shall pay this amount,
subject to any adjustments hereinafter described, in semi-annual
installments as provided in paragraph 5.9.3. below. By giving
written notice to MCWRA on or before May 1, 1997, MCWD may elect to
pay the annexation fee in full, without interest, in one lump sum
on or before July 1, 1997.
5.9.2. credit. MCWD shall have a credit of
$400,000 against the annexation fee, based on the 1990 Agreement
and the similar credit previously given to the U.S.A. on the
annexation of Fort Ord to the Zones.
5.9.3. Payment of annexation fee. MCWD shall pay
its annexation fee as follows:
5.9.3.1. From the total amount of the
annexation fee, subtract the credit of $400,000, to determine the
"net annexation fee." MCWD may elect to pay the net annexation fee
in one lump sum, as provided in paragraph 5.9.1, or may pay in
installments as provided below. If MCWD elects to pay in one lump
sum, any late payment shall bear interest at the annual rate of 6%
from the due date and shall be subject to the same penalties and
collections procedures as are set forth in paragraph 6.7. of this
Agreement and Framework.
5.9.3.2. MCWD may pay in twenty semi-annual
installments, beginning in the fiscal year commencing on July 1,
1997, with interest at the annual rate of six percent (6%) on the
unpaid principal balance accruing from July 1, 1997, and with semi-
annual payments due on November 1 and February 1 and delinquent on
December 10 and April 10 each fiscal year. The interest included
in payments consisting of both principal and interest shall be
calculated as though the installment were paid on the last day
before delinquency, even if the installment is paid in advance of
that date. The total amount of each installment paid on the net
annexation fee shall be sufficient to amortize the full amount of
principal and interest in twenty (20) equal semi-annual
installments. There shall be no pre-payment penalty.
5.10. MCWD use of revenues prior to full payment of
annexation fee. Until MCWD pays or receives credit for the entire
annexation fee and all accrued interest on the fee, all revenue
received by MCWD from the lands annexed to the Zones pursuant to
this Agreement and Framework for or in o n n e t i ~ n with providing
water and sewer service to the lands shall be used only for
activities and functions duly performed by MCWD in connection with
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providing water and sewer service, including, but not limited to,
the payments required under this Agreement and Framework.
6. TERMS AND CONDITIONS--ABMSTRONG.
6.1. Ranch Areas. Annexation of the Armstrong Ranch to
the Zones contemplates two general areas of the Ranch, which are
designated for convenience "Area A" and "Area B." Area A consists
of about 900 acres which is expected to be developed for urban
uses. Area B consists of about 950 acres, a portion of which is
expected to be used for irrigated agriculture, and about 220 acres
of which is expected to be given to MCWD to store treated water.
For purposes of determining assessments, standby charges and the
like, the initial classification of the land within Area B will be
determined at the time of annexation.
6.2. Effective Date of Annexation. Approval of this
Agreement and Framework by the MCWRA Board of Supervisors shall
constitute approval for annexation of the Armstrong Ranch to the
Zones at the time and on conditions approved by LAFCO and
satisfactory to Armstrong for concurrent annexation of the
Armstrong Ranch to MCWD and the City of Marina, including
recordation of a final subdivision map upon conditions satisfactory
to Armstrong.
6.3. Participation by Armstrong in MCWD water sources.
Subject to compliance with all then applicable requirements of law,
including but not limited to CEQA, Armstrong Ranch shall be
entitled at all times to participateon an equitable basis with
MCWD in potable water sources developed by MCWD pursuant to
paragraph 5.5. of this Agreement and Framework, in which event the
limitations concerning the use of water on the Armstrong Ranch, as
set forth in paragraph 6.9. shall not be applicable to using
potable water developed pursuant to paragraph 5.5.
6.4. Prerequisites to annexation to MCWD and the City
of Marina. Any application to LAFCO for annexation of any
Armstrong Ranch property to either MCWD or the City of Marina shall
be concurrently submitted by the City and MCWD, and shall provide
that such property to be annexed shall be within the boundaries of
both MCWD and the City of Marina.
6.5. Annexation fee.
6.5.1. When the Armstrong Ranch has been annexed
to the Zones, Armstrong will pay to MCWRA an annexation fee
computed as the sum of.
6.5.1.1. the product of multiplying the number
of acres annexed by $277/acre for land intended for urban or
irrigated use and $27.70facre for land intended for grazing, dry
land farming or other unirrigated use, and
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6.5.1.2. the product of multiplying the number
of afy of water from the Basin or the Mitigation Plan allocated to
the annexed land by $783/af for potable water intended for urban
use and $261/af for water intended for agricultural use. Such
charge shall not be applicable to any water from a source other
than the Salinas Valley Groundwater Basin or the Salinas River and
its tributaries.
6.5.2. Fees for Armstrong are estimated to be
about $969,660 for Area A, based on 900 acres@ $277/ac. and 920
afy @ $783/af, and an amount subject to final determination upon
actual annexation for Area B. For example, based on 250 irrigated
acres@ $277/ac., 700 unirrigated acres@ $27.70/ac., and 650 afy
of water @ $261/af, the annexation fees for Area B would be about
$258,000.
6.5.3. If annexation of the Armstrong Ranch
occurs more than seven years after MCWRA approves this Agreement
and Framework, Armstrong shall pay the then-current annexation
fees, instead of the fees set forth in paragraph 6.5.1 above.
6.5.4. Armstrong may elect to pay the annexation
fee in a lump sum as provided in paragraph 6.6 below, or may pay
the annexation fee in installments as provided in paragraph 6.7
below. There shall be no prepayment penalty.
6.5.5. If the agricultural water use on Area B is
changed to a potable or industrial use, then Armstrong shall pay to
the MCWRA as an additional annexation fee, an additional water
charge computed as two-thirds (2f3rds) of the product of the number
of afy changed multiplied by the then-current annexation water
charge. If Armstrong uses water on any part of the Armstrong Ranch
which is initially annexed as land for unirrigated use, Armstrong
shall pay an additional land fee of nine times the land fee
specified for such land in 6.5.1.1 above. The additional water
charge or land fee will be paid either in one lump sum, due and
payable on the July 1 immediately following the change in water
use, or in twenty {20) equal semi-annual installments over ten (10)
years, with the payment period and interest accrual beginning on
that July 1, in the same manner as prescribed for Armstrong's
original annexation fee and subject to the same rules.
6.6. Payment of annexation fee in lump sum. If paid in
a lump sum, the annexation fee shall be due and payable in full on
July 1, next succeeding the first March 1 after the effective date
of the annexation. Armstrong may elect to pay the annexation fee
in full in one lump sum by giving written notice of such election
to MCWRA not later than the May 1 immediately preceding the date
payment is due. Any late payment shall bear interest at the annual
rate of 6% from the due date, and shall be subject to the same
penalties and collection procedures as are set forth in
paragraph 6.7.
12400\004\4D-MOA34.026:022096134 11
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Kt:EL 3 4 0 4 PAGE 7 61
6.7. Payment of annexation fee in installments.
6.7.1. If paid in installments, the installments
shall include interest on the unpaid principal balance at the
annual rate determined in the manner hereinafter set forth, which
interest shall begin to accrue on July 1, next succeeding the first
March 1 after the effective date of the annexation. The interest
rate on installments shall be six percent per annum. The interest
included in each installment shall be calculated as though the
installment were paid on the last day before delinquency, even if
the installment is paid in advance of that date.
6.7.2. The amount of each semi-annual installment
shall be sufficient to amortize the full amount of principal and
interest in twenty (20) equal semi-annual installments.
6.7.3. The semi-annual installments shall be paid
and collected at the same time and in the same manner and by the
same persons as, and together with and not separately from, general
agency and zone taxes and shall be delinquent at the same time and
thereafter subject to the same delinquency penalties. The first
installment shall be due on November 1 following July 1, next
succeeding the first March 1 after the effective date of the
annexation and shall be delinquent if not paid on or before the
following December 10. The second installment shall be due on the
following February 1 and shall be delinquent if not paid on or
before the following April 10. Thereafter, installments shall fall
due and become delinquent on the same dates each year.
6.7.4. The full amount of principal and interest
shall .be paid not later than April 10, in the tenth year following
July 1, next succeeding the first March 1 after the effective date
of the annexation.
6.7.5. The amount of each installment shall
constitute a lien on each annexed parcel as of noon on the March 1
immediately preceding the fiscal year (July 1-June 30) in which
payment of the installment will be due. If the property is
subdivided, then a prorata share of the annexation fee shall become
a lien on each individual parcel, based upon the ratio that the
land area of the individual parcel bears to the total land area of
all parcels against which the annexation fee is a lien. All laws.
applicable to the levy, collection and enforcement of general
agency and zone taxes, including, but not limited to, those
pertaining to delinquency, correction, cancellation, refund and
redemption, shall be applicable to such installments.
6.7.6. MCWD shall pay to MCWRA. any fees to annex
the lands within the MCWD Reserved Area described in paragraph 6.10
and shown on Exhibit "F" to this Agreement and Framework.
6.8. Costs, assessments, fees and charges. Costs,
assessments, fees and charges imposed by MCWD in connection with
providing water and wastewater treatment capacity and service to
12400\004\4D-MOA34-.0l6:022096134 12
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57
REEL 3404PAGE 762
the Armstrong Ranch must be equitable and reasonable and must be
reasonably related to services and benefits received, consistent
with the County Water District Law (Water Code sections 30,000 and
following), with Government Code sections 50076 and 66013, and with
applicable case law.
6.9. Quantity limitations on Armstrong water use.
6.9.1. Armstrong shall have the right to utilize
on the Armstrong Ranch groundwater for irrigation, and 920 afy of
additional water for potable uses withdrawn from the Basin, subject
to the limitations set forth herein. Armstrong shall limit potable
water withdrawn from the Basin and used for potable purposes on the
Armstrong Ranch to no more than 20 afy when this Agreement and
Framework becomes effective, 150 afy upon annexation to the Zones,
and an additional 150 afy every two years thereafter, up to the
total of 920 afy for potable purposes from the Basin.
6.9.2. MCWD shall provide Armstrong with water
service for all residential, municipal and industrial uses on the
Armstrong Ranch. In providing such service, the water allocation
for Armstrong, set forth above in paragraph 6.9.1., shall be added
to the MCWD water allocation, as provided in paragraph 5.1.
6.9.3. Groundwater underlying Area B shall be
used solely for agricultural activities conducted on Area B, except
that not more than 20 afy of such groundwater may be used for
potable uses on the Armstrong Ranch, and additional groundwater
underlying Area B also may be used by the MCWD on the part of Area
B conveyed to MCWD and may also be used on the adjacent lands of
the MRWPCA.
6.9.4. The limits on water use provided by this
paragraph 6.9. shall not apply to use of reclaimed water or of
potable water developed from a source other than the Salinas Valley
Groundwater Basin or the Salinas River and its tributaries.
6.10. Reservation of lands for MCWD.
6.10.1. MCWD Reserved Area Armstrong shall
reserve, for use by MCWD, the area shown diagrammatically on
Exhibit "F" to this Agreement and Framework as "MCWD Reserved
Area", and the non-exclusive easements shown on Exhibits "C" and
"F" in favor of MCWD, appurtenant to said MCWD Reserved Area and to
MCWD's reclaimed water system and transferrable with either, for
construction, roads, utilities (including communications),
pipelines, and any other purpose for which a road may be used,
subject to the non-exclusive easements shown on Exhibits "C" and
"F" to be reserved in favor of Armstrong, which said reserved
easements in favor of Armstrong shall be for wells (located within
the southerly 60' of the 160' x 1000' strip as shown on Exhibit
"F", which wells may be relocated within said strip from time to
time, on well sites which may extend north of the southerly 60' of
the strip) for agricultural irrigation, roads, utilities (including
l2400\()j)$\4D-MOA34.026:022096134 13
EXHIBIT C
58
REEL 3 40 4PAGE 763
communications), pipelines, and any other purpose for which a road
may be used, shall be freely assignable and usable by others, and
not subject to being extinguished or limited because of overburden
or surcharge, and which said reserved easements shall not interfere
or be used so as to interfere with the use of the balance of said
MCWD Reserved Area for the production, storage, or distribution of
treated water (tertiary treatment or its equivalent), or potable
water. Before either MCWD or Armstrong installs any facilities in
the reserved easements, MCWD and Armstrong will meet and confer to
assure that their respective uses of and facilities in the said
reserved easements will not conflict. Both parties shall act
reasonably in considering the needs of the other. McwD shall not
place any non-potable water impoundment within the 160' x 1000'
strip, nor any non-potable water pipeline closer than 110' north of
the southerly boundary. MCWD shall not be required to move any
facilities the installation of which has been approved by
Armstrong. Water from wells located in said reserved strip shall
be used only on lands of Armstrong and also may be used by the MCWD
on the part of Area B conveyed to MCWD and may also be used on the
adjacent lands of the MRWPCA.
6.10.1.1. The MCWD Reserved Area, which shall
not exceed 250 acres within the boundaries shown on'Exhibit "F",
will be "office" surveyed at the expense of MCWD within sixty days,
and "field" surveyed at the expense of MCWD within one year,
following approval by the MCWRA Board of Supervisors of this
Agreement and Framework.
6.10.1.2. MCWD will diligently undertake, and
MCWRA, City and Armstrong will cooperate in the planning and
conduct of, the appropriate environmental review and application
for appropriate permits to use MCWD Reserved Area for facilities
for the production, storage, or distribution of treated water
(tertiary treatment or its equivalent), or potable water. Any use
other than for the production, storage, or distribution of treated
water (tertiary treatment or its equivalent), or potable water,
shall require the prior written approval of Armstrong, and any
conveyances from Armstrong to MCWD shall contain appropriate
restrictions on such additional use in the form of a condition
subsequent to.the conveyances and a power of termination in favor
of Armstrong. Any attempt to condemn the power of termination
shall be subject to the provisions of paragraph 6.10.3. as if it
were a condemnation of fee title.
6.10.1.3. MCWD may use and take conveyance of
the MCWD Reserved Area in phases of not less than 40 acres.
Armstrong's obligation to reserve the MCWD Reserved Area shall
expire at midnight on June 30, 2003, or upon delivery to Armstrong
of written notice from MCWD cancelling MCWD's right to receive
conveyance of the MCWD Reserved Area. Armstrong's obligation to
reserve the MCWD Reserved Area shall be extended to July 1, 2010,
if MCWD has begun to use at least 40 acres of the MCWD Reserved
Area by June 30, 2003.
12400\004\4D-MOA34.026:022096134 14
EXHIBIT C
59
~ L 3404PAGE 761
6.10.2. Gift by Armstrong or payment by MCWD.
Armstrong has offered to make a gift to MCWD, at the agreed value
of $25,000 per acre, of 50 acres of the MCWD Reserved Area for the
first 150 afy of water which Armstrong is entitled to withdraw from
the Basin as provided in paragraph 6.9. of this Agreement and
Framework, and 40 acres for each additional 150 afy which Armstrong
may withdraw pursuant to paragraph 6.9, or less than 40 acres for
the last 150 afy, if the last remaining portion of the MCWD
Reserved Area is less than 40 acres, but in no event to exceed the
total acreage of the area shown as the MCWD Reserved Area on
Exhibit "F" to this Agreement and Framework. This offer may be
accepted by MCWD following such final annexation at any time during
the time Armstrong is reserving the MCWD Reserved Area. In any
event, however, and notwithstanding the foregoing, upon receipt by
Armstrong of written request from MCWD, Armstrong will forthwith
convey all or part of the MCWD Reserved Area to MCWD by grant deed.
Any such part must begin in the southwest corner of MCWD Reserved
Area, must be parallel to the southerly and westerly boundaries of
the MCWD Reserved Area, must be rectangular or trapezoidal in
shape, must be at least 40 acres in size, and must be free of any
financial encumbrances except taxes and assessments not delinquent,
but subject to all other encumbrances, and further subject to all
laws, ordinances, regulations and rights of all governmental bodies
having jurisdiction in, on or over the subject real property as
they may from time to time exist. Title shall also be subject to
the lien of a first deed of trust for each conveyance, executed by
MCWD in favor of Armstrong securing the obligation of MCWD in favor
of Armstrong next hereinafter referred to. Beginning six months
after conveyance of any part of the MCWD Reserved Area which is not
conveyed as a gift to MCWD, MCWD shall commence paying to Armstrong
a sum calculated by multiplying the number of acres in such
conveyance by Twenty-Five Thousand Dollars ($25,000.00). The price
of $25,000 per acre shall be adjusted as of July 1, 2003, if
Armstrong's obligation to reserve the property is extended to 2010
pursuant to paragraph 6.10.1.3. of this Agreement and Framework.
In such event, the price per acre shall be computed by multiplying
$25,000 by the percentage increase or decrease in the Cost of
Living Index for all urban consumers in the San Francisco-Oakland-
San Jose Area (1982-1984=100), occurring between July 1, 1997 and
July 1, 2003, or the closest dates to such dates for which figures
are available. Payment shall be made in 20 equal semi-annual
payments, commencing six months after such conveyance, sufficient
to amortize the obligation fully, with the unpaid principal balance
bearing interest from the date of conveyance to MCWD, at the prime
rate of the Bank of America in san Francisco, California, as of
July 1 each year during the term of this obligation, but not to
exceed the maximum rate permitted by law to be charged by Armstrong
in such transaction. Any such payments made or to be made by MCWD,
together with interest from the date of MCWD's payment, through
December 31, 2010, at the prime rate of interest of the Bank of
America in san Francisco, California, shall be included in
computing annexation fees, capacity charges and service charges
charged by MCWD for the part of the Armstrong Ranch to which the
payments made by MCWD to Armstrong relate.
12400\004\4D-MOA34.026:022096/34 15
EXHIBIT C
60
_ R ~ L 3404PASE 765
6.10.3. Waiver of further acquisitions by MCWD.
MCWRA. and City of Marina; liquidated damages. Except for
incidental water system and wastewater system and storm water
system easements, incidental access easements, incidental road
easements, and incidental utility easements, as may be necessary
from time to time, and further excepting land dedicated to public
uses through the development process as a condition of development,
MCWD, City, and MCWRA shall not seek to acquire fee title to land
or easements thereon on any part of the Armstrong Ranch by eminent
domain for use in providing water or wastewater service, or for any
other public purpose whatsoever, except that, as to City only, said
prohibition shall apply only with respect to eminent domain for
water or sanitary sewer facilities and shall not be applicable to
eminent domain for other public purposes; provided, however, that
in the event that any of said agencies shall, notwithstanding the
foregoing covenant, warranty and representation, seek to exercise
the power of eminent domain for any other purpose except as
excepted above, then, and in that event, all Parties hereto hereby
agree that the fair market value of and the price to be paid for
all such land lying within MCWD Reserved Area as shown on
Exhibit "F" hereto (and any additional area shown on an exhibit to
a fully executed addendum to this Agreement and Framework) shall be
the sum of Twenty-Five Thousand Dollars ($25,000.00) cash per acre
and the fair market value and purchase price for all land lying
outside of said MCWD Reserved Area as shown on Exhibit "F" hereto
(and any additional area shown on an exhibit to a fully executed
addendum to this Agreement and Framework) shall be the sum of ONE
HUNDRED THOUSAND Dollars ($100,000.00) cash per acre. FURTHERMORE,
IN THE EVENT THAT MCWD, CITY, AND MCWRA, OR ANY OF THEM, SHOULD
BREACH THIS COVENANT, WARRANTY AND REPRESENTATION, THEN, AND IN
THAT EVENT, THE PARTIES AGREE THAT ARMSTRONG SHALL BE ENTITLED TO
RECOVER FROM SUCH BREACHING PARTY, AS LIQUIDATED DAMAGES, AN AMOUNT
EQUAL TO THE DIFFERENCE BETWEEN THE PRICE PER ACRE ACTUALLY PAID
AND TWENTY-FIVE THOUSAND DOLLARS ($25,000.00) PER ACRE MULTIPLIED
BY THE NUMBER OF ACRES SO TAKEN IN THE CASE OF LAND WITHIN SAID
MCWD RESERVED AREA (AND ANY ADDITIONAL AREA SHOWN ON AN EXHIBIT TO
A FULLY EXECUTED ADDENDUM TO THIS AGREEMENT AND FRAMEWORK), AND THE
DIFFERENCE BETWEEN THE PRICE PER ACRE ACTUALLY PAID AND ONE HUNDRED
THOUSAND DOLLARS ($100,000.00) PER ACRE MULTIPLIED BY THE NUMBER OF
ACRES TAKEN IN THE CASE OF LAND LYING OUTSIDE OF MCWD RESERVED AREA.
(AND ANY ADDITIONAL AREA SHOWN ON AN EXHIBIT TO A FULLY EXECUTED
ADDENDUM TO THIS AGREEMENT AND FRAMEWORK}, AS LIQUIDATED DAMAGES,
WHICH THE PARTIES AGREE IS A REASONABLE SUM CONSIDERING ALL THE
CIRCUMSTANCES EXISTING ON THE DATE OF THIS AGREEMENT AND FRAMEWORK,
INCLUDING THE RELATIONSHIP OF THE SUM TO THE RANGE OF HARM TO
ARMSTRONG THAT REASONABLY COULD BE ANTICIPATED AND THE ANTICIPATION
THAT PROOF OF ACTUAL DAMAGES WOULD BE COSTLY OR INCONVENIENT. IN
PLACING THEIR SIGNATURES BELOW, EACH PARTY SPECIFICALLY CONFIRMS
THE ACCURACY OF THE STATEMENTS MADE ABOVE AND THE FACT THAT EACH
PARTY WAS REPRESENTED BY COUNSEL WHO EXPLAINED THE CONSEQUENCES OF
THIS LIQUIDATED DAMAGES PROVISION AT THE TIME THIS AGREEMENT AND
FRAMEWORK WAS MADE.
l2400\004\40..MOA34.026:022096134 16
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61
REEL 3404PAGE 766
ARMSTRONG
/
MCWD
CITY
MCWRA
6.11. Annexation of portions of Armstrong Ranch used by
MCWD. Notwithstanding any other provision of this section 6,
portions of the Armstrong Ranch owned and{or used by MCWD may be
annexed to the Zones at any time, upon MCWD's written request for
such annexation, and after compliance with all then-applicable.
laws. Any annexation fees or charges by MCWRA for such annexed
lands shall be paid by MCWD.
7. TERMS AND CONDITIONS--LONESTAR.
7.1. Compliance with Agency Act Section 22. The MCWRA
acknowledges that it may not object to any withdrawal by Lonestar
permitted by this section 7, except in compliance with section 22
of the Agency Act. All groundwater withdrawn from the Basin by
Lonestar may be used only within the Basin.
7.2. Quantity Limitations. Commencing on the effective
date of this Agreement and Framework, Lonestar shall limit
withdrawal and use of groundwater from the Basin to Lonestar's
historical use of 500 afy of groundwater.
7 .. 3. Annexation of Lonestar Property to the Zones.
Approval of this Agreement and Framework by the MCWRA Board of
Supervisors shall constitute approval for annexation of the
Lonestar Property in accordance with the terms of this Agreement
and Framework. The actual annexation will occur as follows: The
Lonestar Property annexation to the Zones will not take effect
until the Lonestar Property has been approved for prior or
concurrent annexation into MCWD. When such approval has been
!2400\oiJ414D-MOA34.0'26:022<!96134 17
EXHIBIT C
62
REEL 3404PAGE 767
MCWD
CITY
MCWRA
6.11. Annexation of portions of Armstrong Ranch used by
MCWD. Notwithstanding any other provision of this section 6,
portions of the Armstrong Ranch owned andfor used by MCWD may be
annexed to the Zones at any time, upon MCWD's written request for
such annexation, and after compliance with all then-applicable
laws. Any annexation fees or charges by MCWRA for such annexed
lands shall be paid by MCWD.
7. TERMS AND CONDITIONS--LONESTAR.
7.1. Compliance with Agency Act Section 22. The MCWRA
acknowledges that it may not object to any withdrawal by Lonestar
permitted by this section 7, except in compliance with section 22
of the Agency Act. All groundwater withdrawn from the Basin by
Lonestar may be used only within the Basin.
7.2. Quantity Limitations. Commencing on the effective
date of this Agreement and Framework, Lonestar shall limit
withdrawal and use of groundwater from the Basin to Lonestar's
historical use of 500 afy of groundwater.
7.3. Annexation of Lonestar Property to the Zones.
Approval of this Agreement and Framework by the MCWRA Board of
supervisors shall constitute approval for annexation of the
Lonestar Property in accordance with the terms of this Agreement
and Framework. The actual annexation will occur as follows: The
Lonestar Property annexation to th.e Zones will not take effect
until the Lonestar Property has been approved for prior or
concurrent annexation into MCWD. When such approval has been
l2400\004\4.D-MOA34.026:0Z2096134 17
EXHIBIT C
63
ARMSTRONG
REEL 3404rAGE 768
MCWD
CITY
MCWRA
6.11. Annexation of portions of Armstrong Ranch used. by
MCWD. Notwithstanding any other provision of this section 6,
portions of the Armstrong Ranch owned and/or used by MCWD may be
annexed to the Zones at any time, upon MCWD's written request for
such annexation, and after compliance with all then-applicable
laws. Any annexation fees or charges by MCWRA for such annexed
lands shall be paid by MCWD.
7. TERMS AND CONDITIONS--LONESTAR.
7.1. Compliance with Agency Act Section 22. The MCWRA
acknowledges that it may not object to any withdrawal by Lonestar
permitted by this section 7, except in compliance with section 22
of the Agency Act. All groundwater withdrawn from the Basin by
Lonestar may be used only within the Basin.
7.2. Quantity Limitations. Commencing on the effective
date of this Agreement and Framework, Lonestar shall limit
withdrawal and use of groundwater from the Basin to Lonestar's
historical use of 500 afy of groundwater.
7.3. Annexation of Lonestar Property to the Zones.
Approval of this Agreement and Framework by the MCWRA Board of
Supervisors shall constitute approval for annexation of the
Lonestar Property in accordance with the terms of this Agreement
and Framework. The actual annexation will occur as follows: The
Lonestar Property annexation to the Zones will not take effect
until the Lonestar Property has been approved for prior or
concurrent annexation into MCWD. When such approval has been
l2400\004\40-MOA34.026:0Z2096!34 17
EXHIBIT C
64
REEL3404PAGE 769
MCWD
CITY
MCWRA
6.11. Annexation of portions of Armstrong Ranch used by
MCWD. Notwithstanding any other provision of this section 6,
portions of the Armstrong Ranch owned andfor used by MCWD may be
annexed to the Zones at any time, upon MCWD's written request for
such annexation, and after compliance with all then-applicable
laws. Any annexation fees or charges by MCWRA for such annexed
lands shall be paid by MCWD.
7. TERMS AND CONDITIONS--LONESTAR.
7.1. Compliance with Agency Act Section 22. The MCWRA
acknowledges that it may not object to any withdrawal by Lonestar
permitted by this section 7, except in compliance with section 22
of the Agency Act. All groundwater withdrawn from the Basin by
Lonestar may be used only within the Basin.
7.2. Quantity Limitations. Commencing on the effective
date of this Agreement and Framework, Lonestar shall limit
withdrawal and use of groundwater from the Basin to Lonestar's
historical use of 500 afy of groundwater.
7.3. Annexation of Lonestar Property to the Zones.
Approval of this Agreement and Framework by the MCWRA Board of
supervisors shall constitute approval for annexation of the
Lonestar Property in accordance with the terms of this Agreement
and Framework. The actual annexation will occur as follows: The
Lonestar Property annexation to the Zones will not take effect
until the Lonestar Property has been approved for prior or
concurrent annexation into MCWD. When such approval has been
12400\004\4D-MOA34.026:0'n096134 17
EXHIBIT C
65
REEL 3404PAGE 770
ARMSTRONG
CITY
MCWRA
6.11. Annexation of portions of Armstrong Ranch used by
MCWD. Notwithstanding any other provision of this section 6,
portions of the Armstrong Ranch owned andjor used by MCWD may be
annexed to the Zones at any time, upon MCWD's written request for
such annexation, and after compliance with all then-applicable
laws. Any annexation fees or charges by MCWRA for such annexed
lands shall be paid by MCWD.
7. TERMS AND CONDITIONS--LONESTAR.
7.1. compliance with Agency Act Section 22. The MCWRA
acknowledges that it may not object to any withdrawal by Lonestar
permitted by this section 7, except in compliance with section 22
of the Agency Act. All groundwater withdrawn from the Basin by
Lonestar may be used only within the Basin.
7.2. Quantity Limitations. commencing on the effective
date of this Agreement and Framework, Lonestar shall limit
withdrawal and use of groundwater from the Basin to Lonestar's
historical use of 500 afy of groundwater.
7.3. Annexation of Lonestar Property to the Zones.
Approval of this Agreement and Framework by the MCWRA Board of
supervisors shall constitute approval for annexation of the
Lonestar Property in accordance with the terms of this Agreement
and Framework. The actual annexation will occur as follows: The
Lonestar Property annexation to the Zones will not take effect
until the Lonestar Property has been approved for prior or
concurrent annexation into MCWD. When such approval has been
I2400\004\4D-MOA34.026:022096/34 17
EXHIBIT C
66
ARMS.TRONG RW: 3404?AGE 771
CITY
MCWRA
6.11. Annexation of portions of Armstrong Ranch used by
MCWD. Notwithstanding any other provision of this section 6,
portions.of the Armstrong Ranch owned and/or used by MCWD may be
annexed to the Zones at any time, upon MCWD's written request for
such annexation, and after compliance with all then-applicable
laws. Any annexation fees or charges by MCWRA for such annexed
lands shall be paid by MCWD.
7. TERMS AND CONDITIONS--LONESTAR.
7.1. Compliance with Agency Act Section 22. The MCWRA
acknowledges that it may not object to any withdrawal by Lonestar
permitted by this section 7, except in compliance with section 22
of the Agency Act. All groundwater withdrawn from the Basin by
Lonestar may be used only within the Basin.
7.2. Quantity Limitations. Commencing on the effective
date of this Agreement and Framework, Lonestar shall limit
withdrawal and use of groundwater from the Basin to Lonestar's
historical use of 500 afy of groundwater.
7.3. Annexation of Lonestar Property to the Zones.
Approval of this Agreement and Framework by the MCWRA Board of
Supervisors shall constitute approval for annexation of the
Lonestar Property in accordance with the terms of this Agreement
and Framework. The actual annexation will occur as follows: The
Lonestar Property annexation to the zones will not take effect
until the Lonestar Property has been approved for prior or
concurrent annexation into MCWD. When such approval has been
12400\<Xl4\40-MOA34.026:022096134 17
EXHIBIT C
67
RHL3404rASE 772
ARMSTRONG
MCWRA
6.11. Annexation of portions of Armstrong Ranch used by
MCWD. Notwithstanding any other provision of this section 6,
portions of the Armstrong Ranch owned and/or used by MCWD may be
ann.exed to the Zones at any time, upon MCWD's written request for
such annexation, and after compliance with all then-applicable
laws. Any annexation fees or charges by MCWRA for such annexed
lands shall be paid by MCWD.
7. TERMS AND CONDITIONS--LONESTAR.
7.1. Compliance with Agency Act Section 22. The MCWRA
acknowledges that it may not object to any withdrawal by Lonestar
permitted by this section 7, except in compliance with section 22
of the Agency Act. All groundwater withdrawn from the Basin by
Lonestar may be used only within the Basin.
7.2. Quantity Limitations. Commencing on the effective
date of this Agreement and Framework, Lonestar shall limit
withdrawal and use of groundwater from the Basin to Lonestar's
historical use of 500 afy of groundwater.
7.3. Annexation of Lonestar Property to the Zones.
Approval of this Agreement and Framework by the MCWRA Board of
Supervisors shall constitute approval for annexation of the
Lonestar Property in accordance with the terms of this Agreement
and Framework. The actual annexation will occur as follows: The
Lonestar Property annexation to the Zones will not take effect
until the Lonestar Property has been approved for prior or
concurrent annexation into MCWD. When such approval has been
12400\00414D-MOA34.026,022096/34 17
EXHIBIT C
68
ARMSTRONG
REEL 3404PA6E 773
MCWD
CITY
6.11. Annexation of portions of Armstrong Ranch used by
MCWD. Notwithstanding any other provision of this section 6,
portions of the Armstrong Ranch owned andfor used by MCWD may be
annexed to the Zones at any time, upon MCWD's written request for
such annexation, and after compliance with all then-applicable
laws. Any annexation fees or charges by MCWRA for such annexed
lands shall be paid by MCWD.
7. TERMS AND CONDITIONS--LONESTAR.
7.1. Compliance with Agency Act Section 22. The MCWRA
acknowledges that it may not object to any withdrawal by Lonestar
permitted by this section 7, except in compliance with section 22
of the Agency Act. All groundwater withdrawn from the Basin by
Lonestar may be used only within the Basin.
7.2. Quantity Limitations. Commencing on the effective
date of this Agreement and Framework, Lonestar shall limit
withdrawal and use of groundwater from the Basin to Lonestar's
historical use of 500 afy of groundwater.
7.3. Annexation of Lonestar Property to the Zones.
Approval of this Agreement and Framework by the MCWRA Board of
Supervisors shall constitute approval for annexation of the
Lonestar Property in accordance with the terms of this Agreement
and Framework. The actual annexation will occur as follows: The
Lonestar Property annexation to the Zones will not take effect
until the Lonestar Property has been approved for prior or
concurrent annexation into MCWD. When such approval has been
12400\004\4D-MOA34.026:022096/34 17
EXHIBIT C
69
HtiL 3404PAGE 774
obtained,_ Lonestar shall notify MCWRA, and the MCWRA Board of
Supervisors shall declare by resolution the effective date of the
annexation.
7.4. Annexation fee.
7.4.1. Amount of original annexation fee, When
the Lonestar Property has been annexed to the Zones, Lonestar will
pay to MCWRA an annexation fee computed as follows:
104 acres X $277 (land fee) =
$ 28,808
264 acres X $27.70 (open space) = 7,313
500 afy x $783/3 (water charge) = 130,500
Total principal (original fee) = 166,621
Total interest @ 6% = 57,370
Total payment = 223,991
Semi-annual payments = 11,200
7.4.2. Choice of lump sum or installment.
Lonestar may elect to pay the annexation fee in one lump sum or may
pay in semi-annual installments.
7.4.3. Lump sum payment. If paid in a lump sum,
the original annexation fee shall be due and payable in full on
July 1, next succeeding the first March 1 after the effective date
of the annexation. Lonestar may elect to pay the annexation fee in
full in one lump sum by giving written notice of such election to
MCWRA not later than the May 1 immediately preceding the date
payment in a lump sum would be due. Any late payment shall bear
interest at the annual rate of 6% from the due date, and shall be
subject to the same penalties and collection procedures as are set
forth in paragraph 7.4.4.
7.4.4. Installment payments.
7. 4. 4 .1. If the original annexation fee or any
addition thereto is paid in installments, the installments shall
include interest on the unpaid principal balance at the annual rate
determined pursuant to this Agreement and Framework. _The interest
rate on installments on the original annexation fee shall be
six (6) percent per annum and shall begin to accrue on July 1, next
succeeding the first March 1 after the effective date of the
annexation. The interest rate for the additional water charge
shall be equivalent to that which the County would pay for funds
borrowed at the time the additional water charge is determined and
shall begin to accrue at the beginning of the applicable payment
period. The interest included in each installment shall be
calculated as though the installment were paid on the last day
12400\004\4D-MOA34.026:022096f34 18
EXHIBIT C
70
Rm 3404PASE 775
before delinquency, even if the installment is paid in advance of
that date.
7.4.4.2. The amount of each semi-annual
installment shall be sufficient to amortize the full amount of
principal and interest in twenty (20) equal semi-annual
installments.
7.4.4.3. The semi-annual installments shall be
paid and collected at the same time and in the same manner and by
the same persons as, and together with and not separately from,
general agency and zone taxes and shall be delinquent at the same
time and thereafter subject to the same delinquency penalties. The
first installment shall be due on November 1 following July 1, next
succeeding the first March 1 after the effective date of the
annexation and shall be delinquent if not paid on or before the
following December 10. The second installment shall be due on the
following February 1 and shall be delinquent if not paid on or
before the following April 10. Thereafter, installments shall fall
due and become delinquent on the same dates each year.
7.4.4.4. The full amount of principal and
interest shall be paid not later than April 10, in the tenth year
following July 1, next succeeding the first March 1 after the
effective date of the annexation.
7.4.4.5. The amount of each installment shall
constitute a lien on the annexed property as of noon on the March 1
immediately preceding the fiscal year (July 1-June 30) in which
payment of the installment will be due. If the property is
subdivided, then a prorata share of the annexation fee shall become
a lien on each individual parcel, based upon the ratio that the
land area of the individual parcel bears to the total land area of
all parcels against which the annexation fee is a lien. All laws
applicable to the levy, collection and enforcement of general
agency and zone taxes, including, but not limited to, those
pertaining to delinquency, correction, cancellation, refund and
redemption, shall be applicable to such installments.
7.4.5. Additional annexation fee for change in
water use. If the water use on the Lonestar Property is changed
from an industrial or agricultural use to a potable or other use,
or if MCWD delivers potable water to the Lonestar Property pursuant
to paragraph 5.1.1.3., then Lonestar shall pay to the MCWRA as an
additional annexation fee, an additional water charge computed as
two-thirds (2/3rds) of the product of 500 afy multiplied by the
then-current annexation water charge. If Lonestar uses water on
the 264-acre open-space area, Lonestar shall pay an additional land
fee of nine times the land fee specified for the area in 7.4.1.
above. The additional water charge or land fee will be paid either
in one lump sum, due and payable on July 1, immediately following
the change in water use, or in twenty (20) equal semi-annual
installments over ten (10) years, with the payment period and
interest accrual beginning on that July 1, in the same manner as
l2400\004\4D-MOA34.026:022096134 19
EXHIBIT C
71
REEL 3404PAGE 776
prescribed for Lonestar's original annexation feeand subject to
the same rules.
7.4.6. Additional annexation fee for Mitigation
Plan water supply allocation. If a substitute supply of potable
Mitigation Plan water is approved for the Lonestar Property
pursuant to Section 22 of the MCWRA Act, then, when the contract
for construction of the Mitigation Plan has been approved by the
MCWRA Board of Supervisors, and when Lonestar begins using water
for potable uses, Lonestar will pay as an addition to its
annexation fee an additional water charge computed as two-thirds
(2/3rds) of the product of the amount so allocated multiplied by
the then-current annexation water charge. The additional water
charge will be paid either in one lump sum, due and payable on July
1, immediately following approval of both the Mitigation Plan water
supply for Lonestar and the construction contract for the
Mitigation Plan, or in twenty (20) equal semi-annual installments
over ten (10) years, with the payment period and the interest
accrual beginning on that July 1, in the same manner as prescribed
for Lonestar's original annexation fee and subject to the same
rules.
7.4.7. Non-duplication of additional annexation
fees. The additional annexation fees set forth in paragraphs 7.4.5
and 7.4.6 above are not intended to be cumulative. If Lonestar
becomes liable to pay both of the additional annexation fees, then
Lonestar shall be obligated to pay only the higher of the two fees,
and any amounts previously paid towards the lower additional fees
shall be credited towards payment of the higher.
8. TERMS AND CONDITIONS--GENERAL.
8.1. Equal treatment by MCWRA and MCWD. If future
litigation, regulation or other unforeseen action diminishes the
total water supply available to MCWRA, MCWRA agrees that it will
exercise its powers so that MCWD, Armstrong and Lonestar shall be
no more severely affected in a proportional sense than other lawful
users of water from the Zones, based on the right before the
imposition of any uniform and generally applicable restrictions as
described in paragraph 8.2 to use at least the.quantities of water
from the Basin described in paragraphs 5.1., 6.9., and 7.2. MCWRA
shall not at any time seek to impose greater restrictions on water
use from the Basin by MCWD, Armstrong or Lonestar than are imposed
on users either supplying water for use or using water within the
city limits of the city of Salinas. MCWD, Armstrong and Lonestar
will comply with any basin-wide or area-wide water allocation plans
established by the MCWRA which include MCWD, Armstrong and
Lonestar, and which do not impose on use of water on the lands
described in Exhibits "B", "C", and "D" restrictions greater than
are imposed on users either supplying water for use or using water
within the City of Salinas, and which satisfy the requirements of
paragraph 5.2 of this Agreement and Framework.
l2400\004\4D-MOA34.026:022096/34- 20
EXHIBIT C
72
REEL 3404PAGE 777
8. 2. Water Conservation Measures. MCWD, Armstrong and
Lonestar shall use, and MCWD may require the use of reasonable and
appropriate water conservation measures on the lands described in
Exhibits "B", "C" and "D" to this Agreement and Framework, which
water conservation measures shall be uniformly applied and may be
more restrictive but shall not be less restrictive than measures
implemented by MCWRA as part of a Basin-wide or area-wide water
conservation program. All planning and environmental review for
the lands described in Exhibits "B", "C", and "D" to this Agreement
and Framework shall be based on the requirement that development on
such lands shall use reasonable and appropriate water conservation
measures comparable to measures implemented by MCWRA as part of .a
Basin-wide or area-wide water conservation program, and by MCWD as
part of a water conservation program applicable uniformly within
MCWD's service area.
8.3. Defense of Rights. Upon Mitigation Plan
Implementation, MCWRA will defend the rights of MCWD, Armstrong and
Lonestar to a supply of water from the Mitigation Plan, as though
those rights were the rights of MCWRA. Participation by MCWD,
Armstrong and Lonestar in the Mitigation Plan or any other
alternative water supply plan is subject to compliance with all
applicable laws, including but not limited to CEQA.
8.4. Use of Annexation Fees. Annexation fees from the
MCWD service area, the Armstrong Ranch and the Lonestar Property
shall be used by MCWRA to pay the costs of a BMP process that
includes mitigation plans for the Marina Area based on the planning
guidelines contained in this Agreement and Framework.. Such
annexation fees shall also be used for management and protection of
the
11
900-foot aquifer."
8.5. Assessments. After approval by the Board of
supervisors of annexation to the Zones of any property described in
the exhibits to this Agreement and Framework, each parcel annexed
shall be subject to all uniform assessments, charges, fees, and
other exactions levied in Zones 2 and 2A for the fiscal year
beginning on July 1, next succeeding the first March 1 after the
effective date of the annexation, and shall remain subject thereto
for as long as such exactions are levied and the parcel remains
within the levying zone.
8.6. Recordation. Upon approval of this Agreement and
Framework by the Board of Supervisors and execution by all Parties,
this Agreement and Framework shall be recorded in the office of the
Monterey County Recorder. All signatures shall be notarized as ,
necessary to record the Agreement and Framework.
9. DISPUTE RESOLUTION PROCEDURE.
9.1. If any dispute arises between the Parties as to
the proper interpretation or application of this Agreement and
Framework, the Parties shall first seek to resolve the dispute in
accordance with this Agreement and Framework, and the Parties must
12400\004\4D--MOA34.026:022096134 21
EXHIBIT C
73
REEL 3 4 0 4 PAGE 7 7 8
meet and confer under this Agreement and Framework before filing
any court action.
9.2. If any dispute under this Agreement and Framework
arises, the Parties shall first meet and confer, in an attempt to
resolve the matter between themselves. Each party shall make all
reasonable efforts to provide to the other Parties all the
information that the party has in its possession that is relevant
to the dispute, so that all Parties will have ample information
with which to reach a decision.
9.3. If, notwithstanding the good faith efforts of a
party requesting in writing the resolution of a dispute under this
Agreement and Framework, a dispute remains unresolved sixty-
one {61) days after delivery of the request to the other party, the
party requesting resolution may file suit for legal and equitable
relief, including specific performance, as appropriate.
10. CHALLENGE OF LAWS. Nothing herein contained shall be
construed as stopping or otherwise preventing any party to this
Agreement and Framework from contesting by litigation or other
lawful means the validity, constitutionality, construction, or
application of any law of this State, any ordinance of the public
entities that are Parties hereto, or any rule, regulation or
practice of the public entities that are Parties hereto.
11. WAIVER OF RIGHTS. Any waiver at any time by any party
hereto of its rights with respect to a default or any other matter
arising in connection with this Agreement and Framework shall not
be deemed to be a waiver with respect to any other default or
matter. None of the covenants or agreements herein contained can
be waived except by the written consent of the waiving party.
12. NOTICES. All notices and demands required under this
Agreement and Framework shall be deemed given by one party when
delivered personally to the principal office of the other party;
when faxed to the other party, to the fax number provided by the
receiving party; or five days after the document is placed in the
United States mail, first class, registered mail, or certified
mail, postage prepaid, addressed to the other party as follows:
To MCWD:
To MCWRA:
12400\004\4D-MOA34.026:022096134
11 Reservation Road
Marina, CA 93933-2099
PhoneNo.: .(408) 384-6131
Fax No.: {408) 384-2479
General Manager
P. o. Box 930
Salinas, CA 93902-0930
PhoneNo.: (408)
Fax No.: (408) 424-7935
22
EXHIBIT C
74
REEL 340 4PM1E 779
To City: City Manager
211 Hillcrest Avenue
Marina, CA 93933
Phone No.: (408) 384-3715
Fax No.: (408) 384-0425
To Armstrong: John A. Armstrong
270 River Road
Salinas, CA 93908
Phone No.: (408) 455-1907
Fax No.: (408) 455-2817
To Lonestar: RMC LONESTAR
Attention: Mr. John Rubiales
P.O. Box 5252
Pleasanton, CA 94566
Phone No.: (510) 426-8787
Fax No.: {510) 426-2225
The address or fax number to which any notice or other writing
may be given or made or sent to any party may be changed upon
written notice given by such party as above provided.
13. SEVERABILITY. If any one or more of the covenants or
agreements set forth in this Agreement and Framework on the part of
MCWRA, MCWD, City, Armstrong or Lonestar, or any of them, to be
performed should be contrary to any provision of law or contrary to
the policy of law to such extent as to be unenforceable in any
court of competent jurisdiction, then such covenant or covenants,
agreement or agreements, shall be null and void and shall be deemed
separable from the remaining covenants and agreements and shall in
no way affect the validity of this Agreement and Framework;
provided, that if voiding of such individual covenants or
agreements without voiding the whole agreement would frustrate a
material purpose of Lonestar in entering into this Agreement and
Framework, then this whole Agreement and Framework shall be null
and void ab initio as -to Lonestar only.
14. PARAGRAPH HEADINGS. Paragraph headings in this Agreement
and Framework are for convenience only and are not to be construed
as a part of this Agreement and Framework or in any way limiting or
amplifying the provisions hereof.
15. SUCCESSORS AND ASSIGNS. This Agreement and Framework and
all the terms, covenants, agreements and conditions herein
contained shall inure to the benefit of and be binding upon the
successors and assigns of the Parties hereto.
16. ADMINISTRATORS. MCWD and MCWRA hereby designate their
respective General Managers as their Administrators for this
Agreement and Framework. City designates its City Manager as
City's Agreement and Framework Administrator. Armstrong designates
Mr. John A. Armstrong as its Agreement and Framework Administrator.
Lonestar designates Mr. John Rubiales as its Agreement and
12400\CX>4 \40-MOA34 .016:022096!34 23
EXHIBIT C
75
REEL 3 4 0 4 PAGE 7 8 0
Framework Administrator. All matters concerning this Agreement and
Framework shall be submitted to the Agreement and Framework
Administrators or such other representatives as the Agreement and
Framework Administrators may designate for their respective
agencies. Any party may, in its sole discretion, change its
designation of the Agreement and Framework administrator and shall
promptly give written notice to the other Parties of any such
change.
17. NEGOTIATED AGREEMENT AND FRAMEWORK. This Agreement and
Framework has been arrived at through negotiation between the
Parties. Neither party is to be deemed the party which prepared
this Agreement and Framework within the meaning of Civil Code
section 1654.
18. AMENDMENT. This Agreement and Framework may be amended
only by a writing signed by the Parties affected by the amendment.
19. COUNTERPARTS. This Agreement and Framework may be
executed in counterparts. Each fully executed counterpart shall be
deemed a duplicate original, and all counterparts which together
contain the signatures of all the Parties shall be deemed, when
attached together, one complete and integrated original document.
20. ADDENDUM. A form of Addendum for the MRWPCA is attached
hereto as Exhibit "G." When the Addendum is fully executed in its
present form or in an amended form, it shall be attached to this
Agreement and Framework as an'integral part of this Agreement and
Framework, and the provisions of the Addendum shall be deemed
specifically and fully incorporated into this Agreement and
Framework by this reference.
IN WITNESS WHEREOF, the Parties execute this Agreement and
Framework as follows:
Dated: ~ g(,, 1.996'
Dated: 1996
12400\004\4D-MOA34.026:022096/34
MONTEREY COUNTY WATER RESOURCES
AGENCY
y ~ ~
Edith Johns'
Chair, Board of Supervisors
MARINA COAST WATER DISTRICT
By
Thomas P. Moore
President, Board of Directors
By -------------------------------
Malcolm D. Crawford
secretary, Board of Directors
24
EXHIBIT C
76
----------
STATE OF CALIFORNIA
COUNTY OF HONTEREY
REEL 3404PASE 781
ss.
On this 26th day of !<!arch , 19 _;u;, before me, Ernest
K. Morishita, Clerk of the Board of Supervisors, in and for said
County and State, personally appeared Edith Johnson .. ,
known to me to be the Chairperson of said Board of Supervisors of.i;he
County of Monterey, and known to me to be the person who executed the
within instrument on behalf of said politico1 subdivision, and acknow-
ledged to me that such County of Monterey executed the same.
ERNEST K. MORISHITA, Clerk of the
Board of Supervisors of Monterey
s.tate oftflifornia

Deputy Clerk
EXHIBIT C
77
REEL 3404PAGE 782
Framework Administrator. All matters concerning this Agreement and
Framework shall be submitted to the-Agreement and Framework
Administrators or such other representatives as the Agreement and
Framework Administrators may designate for their respective
agencies. Any party may, in its sole discretion, change its
designation of the Agreement and Framework administrator and shall
promptly give written notice to the other Parties of any such
change.
17. NEGOTIATED AGREEMENT AND FRAMEWORK. This Agreement and
Framework has been arrived at through negotiation between the
Parties. Neither party is to be deemed the party which prepared
this Agreement and Framework within the meaning of Civil Code
section 1654.
18. AMENDMENT. This Agreement and Framework may be amended
only by a writing signed by the Parties affected by the amendment.
19. COUNTERPARTS. This Agreement and Framework may be
executed in counterparts. Each fully executed counterpart shall be
deemed a duplicate original, and all counterparts which together
contain the signatures of all the Parties shall be deemed, when
attached together, one complete and integrated original document.
20. ADDENDUM. A form of Addendum for the MRWPCA is attached
hereto as Exhibit "G." When the Addendum is fully executed in its
present form or in an amended form, it shall be attached to this
Agreement and Framework as an integral part of this Agreement and
Framework, and the provisions of the Addendum shall be deemed
specifically and fully incorporated into this Agreement and
Framework by this reference.
IN WITNESS WHEREOF, the Parties execute this Agreement and
Framework as follows:
Dated:
--------------' 1996
Dated:
12400\oot.\4D-MOA34-,026:022096/34
MONTEREY COUNTY WATER RESOURCES
AGENCY
By
Edith Johnsen
Chair, Board of Supervisors
MARINA COAST WATER DISTRICT
By ~ ~ o illanp
President, Board of Directors
irectors
24
EXHIBIT C
78
Dated:
ljt!xl ?
I
1996
Dated: 1996
Dated:
I
1996
Dated:
I
1996
Dated:
I
1996
Dated:
I
1996
Dated: 1996
I
Dated:
--------------' 1996
Dated: YlJr:u. 2 9 1 1996
12400\004\40-MOA34.026:on09613:4-
REEL 3404PAGE
783
'7 1

,I MAX ARMSTRONG /
THE SANDRA ARMSTRONG MURRAY
REVOCABLE TRUST UTA dated March 7,
1989
By
DARRELL L. MURRAY
I
Trustee
THE LOIS AND CLYDE JOHNSON, JR. I
1989 IRREVOCABLE TRUST
By
CLYDE W. JOHNSON III
I
Trustee
THE JOHNSON FAMILY REVOCABLE LIVING
TRUST UTA dated November 29,
By
CLYDE W. JOHNSON III
CLYDE W. JOHNSON III
EDWIN A. JOHNSON
/\
i \
\ '
SUSANNE IRVINE ARMSTRO
25
I
1989
Trustee
I
EXHIBIT C
79
Dated: , 1996
Dated: , 1996
Dated: , 1996
Dated: , 1996
Dated:
---------------' 1996
Dated:
---------------' 1996
Dated: __ , 19 9 6
I
Dated:
--------------' 1996
Dated: mtU. 2 9
' 1996
12400\004\4D-MOA34Jl16:022096134
REEL 3404PAGE
781
JAY MAX ARMSTRONG
THE SANDRA ARMSTRONG MURRAY
REVOCABLE TRUST UTA dated March 7,
1989
By
THE LOIS AND CLYDE JOHNSON, JR.,
1989 IRREVOCABLE TRUST
By
CLYDE W. JOHNSON III , Trustee
THE JOHNSON FAMILY REVOCABLE LIVING
TRUST UTA dated November 29, 1989
By
CLYDE W. JOHNSON III , Trustee
CLYDE W. JOHNSON III
EDWIN A. JOHNSON

/
/JO
/
SUSANNE IRVINE ARMSTRO
25
EXHIBIT C
80
Dated:
--------------' 1996
Dated:
--------------' 1996
bated: _4-'----L/_,__-___ , 199 6
Dated: -_cf_,___, 19 9 6
Dated: U-L(
'
1996
Dated:
v-
<f
'
1996
'12/.u
Dated:
2't
1996
'
I
Dated:
'
1996
Dated: fna-
29
'
1996
12400'1004-\40-MOA34.026:022096134
I
RHL 3404PAGE 785
JAY MAX ARMSTRONG
THE SANDRA ARMSTRONG MURRAY
REVOCABLE TRUST UTA dated March 7,
1989
By
___ , Trustee
THE LOIS AND CLYDE JOHNSON, JR.,
1989 IRREVOCABLE TRUST
y
THE JOHNSON FAMILY REVOCABLE LIVING
TRUST UTA dated November 29, 1989

JOHNSON
UL'-
EDWIN A.
/\
' I
( '
/
SUSANNE IRVINE
/
0
25
EXHIBIT C
81
Dated:
---------------' 1996
Dated:
---------------' 1996
Dated:
---------------' 1996
Dated:
1996
Dated:
--------------' 1996
Dated:
1996
Dated: __ , 1996
' l
Dated:
--------------' 1996
Dated: mtU-. 2 9
' 1996
12400\004\4D-MOA34.026:022096/34
/
REl 3404Pf.GE 786
JAY MAX ARMSTRONG
THE SANDRA ARMSTRONG
REVOCABLE TRUST UTA dated March 7,
1989
By
Trustee
THE LOIS AND CLYDE JOHNSON, JR.,
1989 IRREVOCABLE TRUST
By
..::C::.;L:!.:YD=E::_W::_:_. Trustee
THE JOHNSON FAMILY REVOCABLE LIVING
TRUST UTA dated November 29, 1989
By
CLYDE W. JOHNSON III
CLYDE W. JOHNSON III
EDWIN A. JOHNSON
/\
( "
SUSANNE IRVINE
25
, Trustee
EXHIBIT C
82
Dated:
---------------' 1996
Dated:
---------------' 1996
Dated:
I
1996
Dated:
I
1996
Dated:
I
1996
Dated:
I
1996
Dated: 1996
I
Dated:
---------------' 1996
Dated: Yn.u- 2 9 1 1996
12400\004\40--MOA34.026:022096134
RIEL 3404PAG 787
JAY MAX ARMSTRONG
THE SANDRA ARMSTRONG MURRAY
REVOCABLE TRUST UTA dated March 7,
1989
By
DARRELL L. MURRAY
I
Trustee
THE LOIS AND CLYDE JOHNSON, JR. I
1989 IRREVOCABLE TRUST
By
CLYDE W. JOHNSON III
I
Trustee
THE JOHNSON FAMILY REVOCABLE LIVING
TRUST UTA dated November 29, 1989
By
CLYDE W. JOHNSON III
I
Trustee
CLYDE W. JOHNSON III
EDWIN A. JOHNSON
/)
I '
\_
25
EXHIBIT C
83
Dated:
Dated:
Dated:
Dated:
Dated:
Dated:
.':f. 1996
1996
l'?:kt. 2. 9 ' 1996
--------------- 1996
1996
-------------- 1996
12400\004\4D-MOA.34.026:022096134
REEL 3 4 0 4 PAGE 7 8 8
SUSANNE IRVINE ARMSTRONG, JAMES
IRVINE ARMSTRONG, JR., and JOHN A.
ARMSTRONG II, as Trustees of the
Trust for the benefit of MARY JANET
ARMSTRONG WEBER as set forth in the
Order Settling Report of Trustees
due to the death of Lois Armstrong,
etc., in the Estate of Irvine
Armstrong, also known as James
Irvine Armstrong, Deceased,
recorded January 4, 1988, in Reel
2191, Official Records of Monterey
county at page 643 therein
(hereinafter referred to as the
11
ary Janet Armstrong Weber Trust")
THE 1990 ARMSTRONG FAMILY TRUST
established by Declaration dated
July 2, 1990
By
Walter J. McCullough
By
Elizabeth S. Armstrong
RMC LONESTAR, a California general
partnership
By
CITY OF MARINA
By
James L Vocelka, Mayor
26
EXHIBIT C
84
Dated:
Dated:
Dated:
Dated:
Dated:
Dated:
---------------' 1996
1996
mu. 2-9 ' 1996
---------------' 1996
---------------' 1996
---------------' 1996

REeL 3404PAGE 789
SUSANNE IRVINE ARMSTRONG, JAMES
IRVINE ARMSTRONG, JR., and JOHN A.
ARMSTRONG II, as Trustees of the
Trust for the benefit of MARY JANET
ARMSTRONG WEBER as set forth in the
Order Settling Report of Trustees
due to the death of Lois Armstrong,
etc., in the Estate of Irvine
Armstrong, also known as James
Irvine Armstrong, Deceased,
recorded January 4, 1988, in Reel
2191, Official Records of Monterey
County at page 643 therein
(hereinafter referred to as the
"Mary Janet Armstrong Weber Trust")
THE 1990 ARMSTRONG FAMILY TRUST
established by Declaration dated
July 2, 1990
By
Walter J. McCullough
By
Elizabeth s. Armstrong
RMC LONESTAR, a California general
partnership
By
CITY OF MARINA
By
James L. Vocelka, Mayor
26
EXHIBIT C
85
Dated:
------ 1996
Dated: 1996
Dated:
Dated:
-------------' 1996
Dated:
---------------' 1996
Dated:
---------------' 1996
l2400\004\40-MOA34.026:022096/34
I
RtEL 3404PAGE 790
SUSANNE IRVINE ARMSTRONG, JAMES
IRVINE ARMSTRONG, JR. , and JOHN A.
ARMSTRONG II, as Trustees of the
Trust for the benefit of MARY JANET
ARMSTRONG WEBR as set forth in the
Order Settling Report of Trustees
due to the death of Lois Armstrong,
etc., in the Estate of Irvine
Armstrong, also known as James
Irvine Armstrong, Deceased,
recorded January 4, 1988, in Reel
2191, Official Records of Monterey
County at page 643 therein
(hereinafter referred to as the
"Mary Janet Armstrong Weber TrUst")
Trustee
THE 1990 ARMSTRONG FAMILY TRUST
establis Declaration dated
July
RMC LONESTAR, a California general
partnership
By
CITY OF MARINA
By
James L. Vocelka, Mayor
26
EXHIBIT C
86
Dated:
1996
Dated:
-------------' 19 96
Dated:
---------------' 1996
Dated:
P-.ff-L. 1996
Dated:
1996
12400\004\4D-MOA34 .026:022096/34
SUSANNE IRVINE ARMSTRONG, JAMES
IRVINE ARMSTRONG, JR., and JOHN A.
ARMSTRONG II, as Trustees of the
Trust for the benefit of MARY JANET
ARMSTRONG WEBER as set forth in the
Order Settling Report of Trustees
due to the death of Lois Armstrong,
etc., in the Estate of Irvine
Armstrong, also known as James
Irvine Armstrong, Deceased,
recorded January 4, 1988, in Reel
2191, Official Records of Monterey
County at page 643 therein
(hereinafter referred to as the
"Mary Janet Armstrong Weber Trust")
By
------------------------' Trustee
JAMES IRVINE ARMSTRONG, JR.
THE 1990 ARMSTRONG FAMILY TRUST
established by Declaration dated
July 2, 1990
By :c:-c:-:----------::-c:----::------------
Walter J. McCullough
By
Elizabeth S. Armstrong
RMC LONESTAR, a California general
partnership
By :f -tit;/
CITY OF MARINA
By -::---:---::----::-:---:-:-----
James L. Vocelka, Mayor
26
EXHIBIT C
87
Dated:
----------------' 1996
Dated:
- - - - - - ~ - - - - - - - 1996
Dated:
----------------' 1996
Dated:
---------------' 1996
Dated:
-4ffi'-e"")'-'9,_"';:___ __ , 19 9 6
124001004\4D-MOA34.026:022096134
Rb 3404PAGE 792
SUSANNE IRVINE ARMSTRONG, JAMES
IRVINE ARMSTRONG, JR., and JOHN A.
ARMSTRONG II, as Trustees of the
Trust for the benefit of MARY JANET
ARMSTRONG WEBER as set forth in the
Order Settling Report of Trustees
due to the death of Lois Armstrong,
etc., in the Estate of Irvine
Armstrong, also known as James
Irvine Armstrong, Deceased,
recorded January 4, 1988, in Reel
2191, Official Records of Monterey
County at page 643 therein
(hereinafter referred to as the
"Mary Janet Armstrong Weber Trust")
By
--------------------------' Trustee
JAMES IRVINE ARMSTRONG, JR.
THE 1990 ARMSTRONG FAMILY TRUST
established by Declaration dated
July 2, 1990
By
Walter J. McCullough
By
Elizabeth S. Armstrong
RMC LONESTAR, a California general
partnership
c NA
By
L. Vocelka, Mayor
26
EXHIBIT C
88
APPROVED AS TO FORM:
Dated:
Dated:
Dated:
Dated:
Dated:
_ __ , 19 9 6
I
fv1 ' 1996
1996
---------------' 1996
---------------' 1996
12400\004-\4D-MOA34-.026:022096/34
WILLIAM K.
Deputy County Counsel,
county
NOLAND, HAMERLY, ETIENNE & HOSS
A rofessional Cor oration

Lloyd w. L wrey, Jr.
Legal Coun el for MARINA
WATER DISTR CT
ROBERT R. WELLINGTON
Legal Counsel for CITY OF MARINA
THOMPSON, HUBBARD & OMETER
A Law Corporation
By
Donald G. Hubbard.
Legal counsel for J.G. ARMSTRONG
FAMILY MEMBERS
PILLSBURY, MADISON AND SUTRO
By
Thomas P. O'Donnell
Legal Counsel for RMC LONESTAR
27
EXHIBIT C
89
APPROVED AS TO FORM:
Dated:
---------------' 1996
Dated:
---------------' 1996
Dated:
_ ,'--. -"'J-'-'1'---' 19 9 6
Dated:
---------------' 1996
Dated:
---------------' 1996
12400\004\4Q..MOA34.026:022096134
REEL 3404PAGE 79
1
1
WILLIAM K. RENTZ
Deputy County Counsel, Monterey
County
NOLAND, HAMERLY, ETIENNE & HOSS
A Professional Corporation
By
Lloyd W. Lowrey, Jr.
Legal Counsel for MARINA COAST
WATER DISTRICT
ROBERT R. WELLINGTON
Legal Counsel for CITY
THOMPSON, HUBBARD & OMETER
A Law Corporation
By
Donald G. Hubbard
Legal Counsel for J.G. ARMSTRONG
FAMILY MEMBERS
PILLSBURY, MADISON AND SUTRO
By
Thomas P. O'Donnell
Legal Counsel for RMC LONESTAR
27
EXHIBIT C
90
APPROVED AS TO FORM:
Dated:
---------------' 1996
Dated:
---------------' 1996
Dated:
---------------' 1996
Dated: 1 1 ~ 0 1 2. q
' 1996
Dated:
--------------' 1996
REEL 3 4 0 4 PAGE 7 9 5
WILLIAM K. RENTZ
Deputy county counsel, Monterey
County
NOLAND, HAMERLY, ETIENNE & HOSS
A Professional Corporation
By ~ - - ~ ~ ~ - - - - ~ - - - - - - - - - - -
Lloyd W. Lowrey, Jr.
Legal Counsel for MARINA COAST
WATER DISTRICT
ROBERT R. WELLINGTON
Legal Counsel for CITY OF MARINA
THOMPSON, HUBBARD & OMETER
A Law Corporation
By
J.G. ARMSTRONG
PILLSBURY, MADISON AND SUTRO
By ~ - - - - ~ ~ ~ - - ~ ~ - - - - - - - - - -
Thomas P. O'Donnell
Legal Counsel for RMC LONESTAR
27
EXHIBIT C
91
APPROVED _AS TO FORM:
Dated:
--------------' 1996
Dated:
--------------' 1996
Dated:
--------------' 1996
Dated:
--------------' 1996
Dated:
l2400\004\4D-MOA34.026:022096134
REEL 3404PAGE 796
WILLIAM K. RENTZ
Deputy County counsel, Monterey
County
NOLAND, HAMERLY, ETIENNE & HOSS
A Professional Corporation
By
Lloyd w. Lowrey; Jr.
Legal Counsel for MARINA COAST
WATER DISTRICT
ROBERT R. WELLINGTON
Legal Counsel for CITY OF MARINA
THOMPSON, HUBBARD & OMETER
A Law Corporation
By
27
Donald G. Hubbard
Legal Counsel for J.G. ARMSTRONG
FAMILY MEMBERS
O'Donnell
Counsel for RMC LONESTAR
EXHIBIT C
92
(
LEGEND
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797 3 4 0 4 PAGE
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MARINA AND VlCINITY
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EXHIBIT "A"
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PROPERlY
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COMPLEX & SEWAGE
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CITY Of MARINA
MUNICIPAL AlRPORT
(FORUERLY FRITZSCHE fiELO)
TRATMEN'l PlANT \ c;;]
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#2 SITE
MONTEREY
BAY
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LONESTAR
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CHARLIE BENSON LANE
30' EASEMENT FOR
ROAD AND UTILITIES IN
FAVOR OF MCWD
ARMSTRONG RANG"/
I
I
MRWPCA REGIONAL
TREATMENT PLANT
SALINAS
INTERCEPTOR W/
20'PERMANENT
EASEMENT
\
1" = ,1600'
30' EASEMENT FOR
ARMSTRONG RANCH
30' TEMPORARY EASEMENT
(EXPIRES ON 7/1/2005)
ARMSTRONG RANCH
PROPERTY
--
-
\
\
30' ROAD
AND UTILITY
EASEMENT
FOR
ARMSTRONG
RANCH
-
-
MCWD
SERVICE
AREA
-

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OLSON SCHOOL AND
METHODIST CHURCH
30' EASEMENT FOR
TEMPORARY ROAD AND
PERMANENT PIPELINES
AND UTILITIES
FOR MCWD
CITY OF MARINA
MUNICIPAL AIRPORT
(FORMERLY FRITZSCHE FIELD)
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95
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.... ..
.... .<J'J.
Landsat
Armstrong .
Marina County
Watsr District
VICINITY MAP
..
REEL 3404PAGE 800
Note:
The Lapis Site rl!lS wii!lin lhe
"Coastal Margin of the Sainas
Vaney Groundwater Basin".
The northern boundary of the
site is colerminous wilh lhe
existing boundary of Zone 2A.
Landsat
Armstrong
EXHIBIT "D" to Memo-
randum of Agreement:
"Lonestar Property to be
Annexed."
Grant Deed
Assessor's Parcel Numbers
michael d. ashley
CIVIL ENGINEER
141513412669
Grant deed dated April 22, 1929
recorded August 29, 1929
Volume 204 Official Rei:ords, at page 127.
!See EXhiiJJt 01 tor Legal oescrlptlom


203..()1117


EXHIBIT C
96
REEL 3 4 0 4 PAGE 8 D 1
EXHIBIT "D 1"
LEGAL DESCRIPTION- LANDS OF RMC-LONESTAR
(based on preliminary report from Western Title
Insurance Company dated December 12, 1986)
said land is situate in the County of Monterey, State of Cali-
fornia, and is described as follows:
PARCEL 1
A part of Monterey City Lands Tract No.
dunes along t;he shore of Monterey Bay,
to-wit:
1 embracing the sand
described as follows,
BEGINNING at the common corner of the Rancho Rincon de las
salinas and the Monterey City Lands Tract No. 1 on the shore of
Monterey Bay, from which an old Four inch by Four inch post
marked "R S 3 Wit" standing on Rancho boundary bears South 63
20' East Twelve and 79/100 chains distant; thence Variation 16
50' East, following the shore line of bay South 1 OS' West Sixty
and 00/100 chains to station; thence South s 40' West Thirty-
three and 00/100 chains to station; thence south 11 3 0' West
Thirty-one and 02/100 chains to the Northerly boundary of the
land of David Jacks; thence leaving the shore of the Monterey
Bay and following the fence along the Northerly line of the land
of David Jacks Corporation South 65 30' East, Twenty-three and
61/100 chains to station; thence South 65 12' East Five and
31/100 chains a Four inch by Four inch post marked "E. B. & A.
L. s. Cor. No. 1" standing at the foot of sand hills and at the
Easte.rly side thereof, Seven and 23/100 chains to station from
which the point of intersection of Jacks boundary fence with the
'center line of the s. P. R. R. at station 281 plus Fifty-one
and 6/10 bears South 65 12' East Fifty-one and 73/100 chains
distant; thence leaving the Jacks boundary and following the old
fence skirting the Easterly side of sand dunes North 7 30' East
Eleven and 00/100 chains; thence North 15 15' East Five and
87/100 chains to station; thence North 34 East Six and 9'2/100
chains to station; thence North 11 o 3 0' East One and 00/100
chains to station; thence North 5 45' West Five and 18/100
chains to station; thence North 12 o 15' East Five and 66/100
chains to station; thence North 4 West 3 and 60/100 chains to
station; thence North 34 East One and. 27/100 chains to station;
thence North 14 o 3.0 East Three and 29/100 chains to station;
thence North 6 45' West Three and 83/100 chains to center line
of Lapis Spur track; thence North 0 15' East Five and 51/100
chains to station; thence North 22 30' East Four and 10/100
chains to station; thence North 16 45' East Five and 05/100
chains to station; thence North 34 East Four and 17/100 chains
to station; thence North 13 East Ten and 15/100 chains to
station; thence North 30 45' East Two and 45/100 chains to
EXHIBIT C
97
EXHIBIT "D 1"
Page 2 of 3
REEL 3404PAGE 8{!2
station; thence North 13 40' East Two and 72/100 chains to an
old fence corner; thence North g 35' West One and 83/100 chains
to station 17; thence North g 35' West Twenty-seven and 60/100
chains to station 18; thence North 32 40' East Five and 21/100
chains to station 19; thence North 70 East Two and 27/100 chains
to station 20; thence North 46 50' East Two and 16/100 chains
to station 21; thence North 12 45' West Three and 05/100 chains
to station 22; thence North 26 30' East One and 92/100 chains
to a Four inch by Four inch post marked E. B. & A. L. s. Cor.
No. 23" standing in the fence on the line between the Monterey
City Lands and the Rancho Rincon de las Salinas, thence leaving
foot of sand hills and following said line fence across same
North 63 20'' West Forty-two and 02/100 chains to the place of
beginning.
PARCEL 2
All those certain lots, pieces
and being in the County of
described as follows:
or parcels of land situate, lying
Monterey, state of California,
A PART of Monterey City Lands Tract No. 1, described as follows:
A strip of land one hundred feet wide measured at right angles
to and lying fifty feet on each side of a line located and
described as follows:
BEGINNING at a point on the Eastern boundary of the piece of
land here-in-before described as Parcel 1, said point bearing
North 6 45' West from station numbered 9 on said boundary line
and .distant Two hundred fifty-two and 5/10 feet therefrom thence
by a straight line bearing South 77 29' East Five hundred
seventy-nine and 38/100 feet; thence by a 6 OO' curve to the
left (radius 955.04 feet), Five hundred seventy-six and 81/100
feet; thence by a straight line bearing North 67 54-1/2' East
Six hundred forty-eight and OB/100 feet; thence by a 5 00' curve
to the left (radius 1146.01 feet) Eleven hundred thirty-nine and
2/10 feet, more or less, to the Western line of the Southern
Pacific Company's Railroad right of way.
EXCEPTING THEREFROM that portion conveyed to the State of Cal-
ifornia by deed dated May 31, 1974 and recorded August 19, 1974,
on Reel 930, Official Records, at page 909, Monterey County
Records.
PARCEL 3
All those certain lots, pieces or parcels of land situate, lying
and being in the county of Monterey, State of California,
described as follows:
EXHIBIT C
98
EXHIBIT "D 1"
Page 3 of 3
REEL 3404PAGE 8{}3
All that portion of Monterey city Lands Tract No. 1 lying between
the Western boundary line of Parcel 1 of the property described
in the deed from John A. Armstrong et al, to E. B. & A. L. Stone
Company, a corporation, dated January 24, 1907, and recorde.d
January 24, 1907 in Liber 95 of Deeds, page 388, and the Western
boundary line of the property patented to the city of Monterey,
by patent, dated November 19, 1891, and recorded November 16,
1896 in Liber "F" of patents at page 178.
PARCEL4
All those certain lots, pieces
and being in the County of
described as follows:
or parcels of land situate, lying
Monterey, State of California,
All that part of Monterey City Lands Tract No. 1 described as
follows:
BEGINNING at a Four inch by Four inch post marked "B 6
11
standing
in the Eastern Boundary of the certain 399.70 acre tract conveyed
by J. G. Armstrong Co., a corporation, to the E. B. & A. L.
Stone Co., a corporation by deed dated January 31, 1911, and
recorded in volume 117, of Deeds at page 283, Monterey County
Records, from which station 9 of said boundary bears South 6
45' East one hundred ninety-five and 08/100 feet distant; thence
along said Eastern boundary North 6 45' West Fifty-seven and
7/10 feet to a station in center line of one hundred foot right
of way as shown in above mentioned deed; thence North o 15'
East, still along said.Eastern boundary three hundred sixty-three
and 6/10 feet to a station; thence North 22 30' East one hundred
seven and 0/10 feet to a four inch by four inch post marked "B
1" in said Eastern boundary; thence leave said boundary South
29 50' East three hundred ninety-two and 2/10 feet to a four
inch by four inch post marked "b 2"; thence South 45 29' East
one hundred thirty-one and 0/10 feet to a four inch by four inch
post marked "B 3"; thence South 77 40' East two hundred
seventy-six and 0/10 feet to a four inch by four inch post marked
"B 4"; thence south 12 o 20' West, at fourth-nine and 9/10 feet
to the Northern line of above mentioned one hundred foot right
of way at one hundred forty-nine and 9/10 feet the Southern line
of same, one hundred fifty-five and 0/10 feet to a four inch by
four inch post marked "b 5", thence North 77 40' West, five
feet southerly of and parallel with the Southern line of said
right of way five hundred seventy-four and 3/10 feet to the place
of beginning.
Courses all true variation of magnetic needle being 17 15' East.
surveyed by Cozzens & Davies, Salinas, California, March 1922
E
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EXHIBITE
ELEMENTS OF YEARLY INCREMENTAL COSTS
FOR ADD-ON OF RECLAIMED WATER FOR M & I PUROSES OVER AND ABOVE
THAT COMMITTED TO THE CASTROVILLLE SEAWATER IRRIGATION PROJECT
I) Operation and Maintenace (O&M) Element of costs to provide tertiary treatment (in $/acre-foot for the year ofl.). Costs for the previous
year will be used to estimate the next year costs. An adjustment will be included in the following year to reflect actual costs. The next
year flow volume demand for MCWD will be based on a projection submitted by the MCWD to the MCWRA by June 30, three months
before delivery of next year reclaimed water to the MCWD reservoir.
Chemical costs
Power costs e Sludge management costs

Labor costs Repair and replacement costs
O&M. ELEMENT (in $/acre-foot)= r chemicals+ power+ sludge mgmt. +labor+ repair & replacement costs adjustment for previous year
Projected Next Year Flow Volume Demand [ CSIP(afy) + MCWD(afy)]
2) Bureau of Reclamation Loan Element (BRLE). Includes Reimbursible Interest During Construction (RIDC) and Emergency Reserve
Fund Contribution (ERFC) in$ I acre-foot for the year of 1.
APPLICABLE ANNUAL PERCENTAGE for M&l (AAPM&I) Proiected nextYear flow volume demand foLMCWD {afYl
Projected Next Year Flow Volume Demand [ CSIP(afy) + MCWD(afy)]
BRLE($) FOR AAPM&l x [PRINCIPAL+ !NTERESTI7.625%l ON OUTSTANDING PRINCIPAL+ RJDC + ERFC FOR YEARC?ll
Projected next year flow volume demand for MCWD (afy)
3) Increased capital cost element to cover M&I for the MCWD.
No additional capital costs.
4) Capital Risk Share Element (CRSE) in$ I acre-foot for the year ofl..
CRSE ($) = AAPM&l x [ SYRP Debt Seryjce for State Revolving FundCSchedule A Line I 8l+ l/3 of Bonds (Schedule A, Line 251 FOR YEARC?l]
Projected next year flow volume demand for MCWD (afy)
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Pl.o\NT
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30' TEMPORARY EASEMENT
(EXPIRES ON 7/1/2005)
ARMSTRONG RANCH PROPERTY
30' EASEMENT FOR
TEMPORARY ROAO ANO
PERMANENT PIPELINES
AND UTILITIES FOR MCWD
t\
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W/ ?0' PERMANENT EASEMENT
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ROAO AND PIPELINE
FOR ARMSTRONG RANCH
(AREA 1.6 ACRES)
DATE: 2/27/96 DRAWN BY: LJK/JHL

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102
REEL 3 4 0 4 PAGE 8 U 7
EXHrBrT G
MONTEREY REGrONAL WATER POLLUTrON CONTROL AGENCY
ADDENDUM TO
ANNEXATrON AGREEMENT AND GROUNDWATER KrTrGATrON FRAMEWORK
FOR
MARrNA AREA LANDS
1. PURPOSE. The Parties to the Agreement and Framework
agree with the Monterey Regional Water Pollution Control Agency
("MRWPCA") that it is in the best interests of all of them and the
persons they represent if the MRWPCA is also a party to the
Agreement and Framework, with certain additional terms specific to
the MRWPCA. If this Addendum is approved by the MRWPCA within one
year of approval of the Agreement and Framework and this Addendum
by the other Parties, this Addendum will become part of the
Agreement and Framework, and the MRWPCA will be considered a party
to the Agreement and Framework, effective from the date the
Agreement and Framework and this Addendum are approved by the Board
of Supervisors of the MCWRA.
2. MRWPCA. MRWPCA is a joint powers authority providing
sewage treatment service to its member entities in Northern
Monterey county, governed by its Board of Directors.
3. MRWPCA SUPPORT FOR ANNEXATION. MRWPCA is supporting the
request for annexation contained in paragraph 4.1 of the Agreement
and Framework to encourage reasonable and beneficial water reuse,
and to help implement the MCWRA/MRWPCA Agreement, the MRWPCA
Annexation Agreement, and the SVRP.
4. RESERVATION FOR MRWPCA. Armstrong shall reserve, for use
by MRWPCA, the area shown diagrammatically on Exhibit "I" to this
Addendum (hereinafter the "MRWPCA Reserved Area"), subject to the
non-exclusive easements shown on Exhibit "I" to be reserved in
favor of Armstrong and MCWD, which said reserved easements in favor
of Armstrong and MCWD shall be for roads, utilities (including
communications), pipelines, and any other purpose for which a road
may be used, shall be freely assignable and usable by others, and
not subject to surcharge.
4.1. Survey. The MRWPCA Reserved Area, which shall not
exceed 10 acres, will be "field" surveyed at the expense of MRWPCA
within one year following approval by the MCWRA Board of
Supervisors of the annexation to the Zones of any of the lands
described in Exhibit "C" to the Agreement and Framework.
4.2.
City, MCWRA and
conduct of, the
for appropriate
Use. MRWPCA will diligently undertake, and MCWD,
Armstrong will cooperate in the planning and
appropriate environmental review and application
permits to use the MRWPCA Reserved Area solely and
12400\004\4D-MOA34.026:022096/34 1
EXHIBIT C
103
KEEL 3404PAGE 8(18
exclusively as a buffer zone between the existing Regional
Treatment Plant and the Armstrong Ranch. Any additional use is
subject to the written approval of Armstrong first had and
obtained, and any conveyance from Armstrong to MRWPCA shall contain
appropriate restrictions on such additional use in the form of a
condition subsequent and a power of termination in favor of
Armstrong. Any attempt to condemn the power of termination shall
be subject to the provisions of paragraph 6.10.3 as if it were a
condemnation of fee title.
4.3. Expiration of Reservation. Armstrong's obligation
to reserve the MRWPCA Reserved Area shall expire at midnight on
June 30, 2003, or upon delivery to Armstrong of written notice from
MRWPCA cancelling MRWPCA's right to receive conveyance of the
MRWPCA Reserved Area.
4.4. Payment. Upon conveyance of the MRWPCA Reserved
Area to MRWPCA, MRWPCA shall pay to Armstrong a sum calculated by
multiplying the number of acres in such conveyance by Twenty-Five
Thousand Dollars ($25,000.00).
4.5. Title. Upon receipt by Armstrong of written
request from MCWD, Armstrong will forthwith convey all or part of
the .MRWPCA Reserved Area to MRWPCA by grant deed, free of any
financial encumbrances except taxes and assessments not delinquent,
but subject to all other encumbrances, and further subject to all
laws, ordinances, regulations and rights of all governmental bodies
having jurisdiction in, on or over the subject real property as
they may from time to time exist.
5. ATTACHMENT TO AGREEMENT AND FRAMEWORK; INCORPORATION BY
REFERENCE. When this Addendum is fully executed, it shall be
attached to the Agreement and Framework as an integral part of the
Agreement and Framework, and the provisions of Sections 1, 2, 3,
s, and 9 through 20, inclusive, and paragraphs 4.5, 5.6, 5.7 and
6.10.3 of the Agreement and Framework are specifically incorporated
into this Addendum by this reference and shall apply to the terms
of this Addendum and as fully to MRWPCA as though MRWPCA had signed
the Agreement and Framework. A person duly authorized by MRWPCA
places his or her initials here to indicate MRWPCA's specific
agreement to the provisions of paragraph 6.10.3:
Signature:
Printed Name and Title:
12400\004\4D-MOA34.026:0220%134 2
EXHIBIT C
104
i
-'
'
J
REtL 340 4PAGE 80 9
6. NOTICES. Notices to MRWPCA under this Addendum and the
Agreement and Framework shall be addressed as follows:
General Manager
5 Harris Court, Building D
Monterey, CA 93940
Phone No.: (408) 372-3367
Fax No.: (408) 372-6178
The address or fax number to which any notice or other writing
may be given or made or sent may be changed upon written notice
given as provided in paragraph 12 of the Agreement and Framework.
7. ADMINISTRATOR. MRWPCA hereby designates MRWPCA's General
Manager as its Administrator for this Agreement and Framework.
IN WITNESS WHEREOF, the Parties execute this Addendum as
fo.llows:
Dated:
1996
Dated: 1996
Dated:
---------------' 1996
Dated:
---------------' 1996
12400\004\4D-MOA34.026:022096134
MRWPCA
By
Keith Israel, Agency Director
MONTEREY COUNTY WATER RESOURCES
AGENCY

Edith
Chair, Board of Supervisors
MARINA COAST WATER DISTRICT
By
Thomas P. Moore
By
President, Board of Directors
Malcolm D. Crawford
Secretary, Board of Directors
JAY MAX ARMSTRONG
3
EXHIBIT C
105
STATE OF CALIFORNIA
COUNTY OF MONTEREY
)
)
ss.
REEl 3 4 0 4 PAGE 81 0
On this 26th day of March , before n\e, Ernesto
K. Morishita, Clerk of the Board of Supervisors, in and for said
County and State, personally appeared Edith Johnsen . ,
known to me to be the Chairperson of said Board of Supervisors of.'lohe
County of Monterey, and known to me to be the person who executed the/
within instrument on behalf of said politic.,; subdivision, and acknow-
ledged to me that such County of Monterey exe<..c1ted the same.
ERNEST K. MORISHITA, Clerk of the
Board of Supervisors of Monterey
co(ntY') (Ol\ }":lifornia

Deputy Clerk
EXHIBIT C
106
REEL:) 4 0 4 PAGE 811
6. NOTICES. Notices to MRWPCA under this Addendum and the
Agreement and Framework shall be addressed as follows:
General Manager
5 Harris Court, Building D
Monterey, CA 93940
Phone No.: (408) 372-3367
Fax No.: (408) 372-6178
The address or fax number to which any notice or other writing
may be given or made or sent may be changed upon written notice
given as provided in paragraph 12 of the Agreement and Framework.
7. AQMINISTRATOR. MRWPCA hereby designates MRWPCA's General
Manager as its Administrator for this Agreement and Framework.
IN WITNESS WHEREOF, the Parties execute this Addendum as
follows:
Dated:
1996
Dated:
--------------' 1996
Dated:
---------------' 1996
Dated:
--------------' 1996
12400\004\40-MOA34.026:022096134
MRWPCA
By
Keith Israel, Agency Director
MONTEREY COUNTY WATER RESOURCES
AGENCY
By
Edith Johnsen
Chair, Board of Supervisors
MARINA COAST WATER DISTRICT
By frkr:ne=-=--f--. --
Thomas P. Moore
President, B.oard of Directors

Malcolm D. CraWfOrd'
Secretary, Board of Directors
JAY MAX ARMSTRONG
3
EXHIBIT C
107
KEEL 3 4 0 4 PAGE 812
6. NOTICES. Notices to MRWPCA under this Addendum and the
Agreement and Framework shall be addressed as follows:
General Manager
5 Harris Court, Building D
Monterey, CA 93940
Phone No.: (408) 372-3367
Fax No.: (408) 372-6178
The address or fax number to which any notice or other writing
may be given or made or sent may be changed upon written notice
given as provided in paragraph 12 of the Agreement and Framework.
7. ADMINISTRATOR. MRWPCA hereby designates MRWPCA's General
Manager as its Administrator for this Agreement and Framework.
IN WITNESS WHEREOF, the Parties execute this Addendum as
follows:
Dated:
'
1996
Dated:
'
1996
Dated:
'
1996
Dated: J(Jr / g>-
' 1996
12400\004-\40-MOA34.026:022096!34
MRWPCA
By
Keith Israel, Agency Director
MONTEREY COUNTY WATER RESOURCES
AGENCY
By
Edith Johnsen
Chair, Board of Supervisors
MARINA COAST WATER DISTRICT
By
By
3
Thomas P. Moore
President, Board of Directors
Malcolm D. Crawford
Secretary, Board of Directors
EXHIBIT C
108
Dated:
~ - - - - - - - - - - - - - 1996
Dated:
---------------' 1996
Dated:
_____________ , 1996
Dated:
---------------' 1996
Dated:
_______________ , 1996
Dated:
9Y/aa ;; '1, 1996
'
Dated:
--------------' 1996
Dated: hJ<M- ;! 2
, 1996
12400\004-\40-MOA34.026:022096/34
REEL 3404PAGE 813
THE SANDRA ARMSTRONG MURRAY
REVOCABLE TRUST UTA dated March 7,
1989
//J }'"/
By ~ ..... ? h
Trustee
THE LOIS AND CLYDE JOHNSON, JR.,
1989 IRREVOCABLE TRUST
By
CLYDE W. JOHNSON III , Trustee
THE JOHNSON FAMILY REVOCABLE LIVING
TRUST UTA dated November 29, 1989
By
CLYDE W. JOHNSON III , Trustee
CLYDE W. JOHNSON III
EDWIN A. JOHNSON
SUSANNE IRVINE ARMSTRONG
4
EXHIBIT C
109
Dated:
_____________ , 1996
Dated:
cf- y' ' 1996
Dated:
Lf- </ ' 1996
Dated:
v- L/ ' 1996
Dated:
C/- !{ ' 1996
Dated:
;z 7' 1996
I .
Dated:
-------------' 1996
Dated: h)c;<A.. ;2 2 , 1996
l2400\004\4Q..MOA34.026:022096134
REEL J 0 4 PAGE 81 'i
THE SANDRA ARMSTRONG MURRAY
REVOCABLE TRUST UTA dated March 7,
1989
By
Trustee
HNSON III Trustee
THE JOHNSON FAMILY REVOCABLE LIVING
TRUST UTA dated November 29, 1989

a DEw- Y#!NsoN IIi : Trustee
t:!
SUSANNE IRVINE ARMSTRONG
4
EXHIBIT C
110
pated:
---------------' 1996
Dated:
______________ , 1996
Dated:
1996
Dated:
---------------' 1996
Dated:
_______________ , 1996.
Dated:
Dated:
Dated: h'):u. .J 9 ' 1996
12400\oot.\4D-MOA34.026:022096134
.EL 3404PAGE 815
THE SANDRA ARMSTRONG MURRAY
REVOCABLE TRUST UTA dated March 7,
1989
By
Trustee
THE LOIS AND CLYDE JOHNSON, JR.,
1989 IRREVOCABLE TRUST
By
CLYDE W. JOHNSON III , Trustee
THE JOHNSON FAMILY REVOCABLE LIVING
TRUST UTA dated November 29, 1989
By ----------------------------
CLYDE W. JOHNSON III , Trustee
CLYDE W. JOHNSON III
EDWIN A. JOHNSON
4
EXHIBIT C
111
Dated:
Dated:
Dated: }f),::u . .? 9
' 1996
Dated:
---------------' 1996
Dated:
---------------' 1996
Dated:
---------------' 1996
12401J.004\4D-MOA34.026:022096134
SUSANNE IRVINE ARMSTRONG, JAMES
IRVINE ARMSTRONG, JR., and JOHN A.
ARMSTRONG II, as Trustees of the
Trust for the benefit of MARY JANET
ARMSTRONG WEBER as set forth in the
Order Settling Report of Trustees
due to the death of Lois Armstrong,
etc., in the Estate of Irvine
Armstrong, also known as James
Irvine Armstrong, Deceased,
recorded January 4, 1988, in Reel
2191, Official Records of Monterey
County at page 643 therein
(hereinafter referred to as the
ry Janet Armstrong Weber Trust")
THE 1990 ARMSTRONG FAMILY TRUST
established by Declaration dated
July 2, 1990
By
Walter J. McCullough
By
Elizabeth s. Armstrong
RMC LONESTAR, a California general
partnership
By -------------------------------
CITY OF MARINA
By ------------------------------
James L. Vocelka, Mayor
5
EXHIBIT C
112
Dated:
---------------' 1996
Dated: ~ Jb1 , 1996
Dated: }f)tu. ,2 9 , 1996
Dated:
---------------' 1996
Dated:
---------------' 1996
Dated:
---------------' 1996
l2400\Q04.\4.0-MOA34.026:lJ22096134
REEL 3 4 0 4 PAGE 817
SUSANNE IRVINE ARMSTRONG, JAMES
IRVINE ARMSTRONG, JR., and JOHN A.
ARMSTRONG II, as Trustees of the
Trust for the benefit of MARY JANET
ARMSTRONG WEBER as set forth in the
Order Settling Report of Trustees
due to the death of Lois Armstrong,
etc., in the Estate of Irvine
Armstrong, also known as James
Irvine Armstrong, Deceased,
recorded January 4, 1988, in Reel
2191, Official Records of Monterey
county at page 643 therein
(hereinafter referred to as the
"MaryJanet Armstrong Weber Trust")
THE 1990 ARMSTRONG FAMILY TRUST
established by Declaration dated
July 2, 1990
By -----------------------------
Walter J. McCullough
By ------------------------------
Elizabeth s. Armstrong
RMC LONESTAR, a California general
partnership
By ----------------------------
CITY OF MARINA
By ----.,---:-:---,-,-------
James L. Vocelka, Mayor
5
EXHIBIT C
113
Dated:
------------ 1996
Dated: - ~ - 121 , 1996
Dated: }?)ttA_ . ..(' 9 , 1996
Dated:
--------------- 1996
Dated:
-------------- 1996
Dated:
-------------- 1996
I2400\004\4D-MOA34.026:022096134
~ __ _: 3 4 0 4 PAGE 818
SUSANNE IRVINE ARMSTRONG, JAMES
IRVINE ARMSTRONG, JR., and JOHN A.
ARMSTRONG II, as Trustees of the
Trust for the benefit of MARY JANET
ARMSTRONG WEBER as set forth in the
Order Settling Report of Trustees
due to the death of Lois Armstrong,
etc., in the Estate of Irvine
Armstrong, also known as James
Irvine Armstrong, Deceased,
recorded January 4, 1988, in Reel
2191, Official Records of Monterey
County at page 643 therein
(hereinafter referred to as the
"Mary Janet Armstrong Weber Trust")
THE 1990 ARMSTRONG FAMILY TRUST
established by Declaration dated
July 2, 90
RMC LONESTAR, a California general
partnership
By
CITY OF MARINA
By
James L. Vocelka, Mayor
5
EXHIBIT C
114
Dated:
---------------' 1996
Dated:
---------------' 1996
Dated:
---------------' 1996
Dated: 1 1996
Dated:
--------------' 1996
12400\004\4D-MOA34.026:022096134
REEL 3404PAGE 8i9
SUSANNE IRVINE ARMSTRONG, JAMES
IRVINE ARMSTRONG, JR., and JOHN A.
ARMSTRONG II, as Trustees of the
Trust for the benefit of MARY JANET
ARMSTRONG WEBER as set forth in the
Order Settling Report of Trustees
due to the death of Lois Armstrong,
etc., in the Estate of Irvine
Armstrong, also known as James
Irvine Armstrong, Deceased,
recorded January 4, 1988, in Reel
2191, Official Records of Monterey
County at page 643 therein
(hereinafter referred to as the
"Mary Janet Armstrong Weber Trust")
By ~ ~
-------------------------' Trustee.
JAMES IRVINE ARMSTRONG, JR.
THE 1990 ARMSTRONG FAMILY TRUST
established by Declaration dated
July 2, 1990
By ~ ~ ~ ~ ~
Walter J. McCullough
By ~ ~ ~ ~ ~
Elizabeth S. Armstrong
RMC LONESTAR, a California general
partnership
By
CITY OF MARINA
By
James L. Vocelka, Mayor
5
EXHIBIT C
115
Dated:
~ - - - - - - - - - - - - - 1996
Dated:
- - - - - - - - - - ~ - - 1996
Dated:
---------------' 1996
Dated:
---------------' 1996
Dated:
...:...1.1 t'--=J'-1--/--'-CJ'--.h ---' 19 9 6
12400\004\4J)...MOA34.026:022096134
II - 3404PAGE 820
SUSANNE IRVINE ARMSTRONG, JAMES
IRVINE ARMSTRONG, JR., and JOHN A.
ARMSTRONG II, as Trustees of the
Trust for the benefit of MARY JANET
ARMSTRONG WEBER as set forth in the
Order Settling Report of Trustees
due to the death of Lois Armstrong,
etc., in the Estate of Irvine
Armstrong, also known as James
Irvine Armstrong, Deceased,
recorded January 4, 1988, in Reel
2191, Official Records of Monterey
County at page 643 therein
(hereinafter referred to as the
"Mary Janet Armstrong Weber Trust")
By - - - - - - - - - - - - - - - - - - - - - - ~ - - ~
-------------------------' Trustee
JAMES IRVINE ARMSTRONG, JR.
THE 1990 ARMSTRONG FAMILY TRUST
established by Declaration dated
July 2, 1990
By = - ~ - - ~ ~ ~ ~ ~ ~ - - - - - - - - - -
Walter J. McCullough
By ~ ~ ~ ~ ~ - - ~ ~ - - - - - - - - - - - -
Elizabeth S. Armstrong
RMC LONESTAR, a California general
partnership
5
EXHIBIT C
116
APPROVED _AS TO FORK:
Dated:
199 6
Dated:
Dated:
---------------' 1996
Dated:
---------------' 1996
Dated:
---------------' 1996
. Dated:
1996
12400\004\4D-MOA34.026:022096134
4
8
91
REEL 340 PAGE -
WILLIAM K.
Deputy County Counsel,
county
ey
NOLAND, HAMERLY, ETIENNE & HOSS
A P ofessional
By
Lloyd
Legal Counse
WATER DISTRI
ROBERT R. WELLINGTON
Legal Counsel for CITY OF MARINA
ROBERT R. WELLINGTON
Legal Counsel for MRWPCA
THOMPSON, HUBBARD AND OMETER
A Law Corporation
By
Donald G. Hubbard
Legal Counsel for J.G. ARMSTRONG
FAMILY MEMBERS
PILLSBURY, MADISON AND SUTRO
By
Thomas P. O'Donnell
Legal Counsel for RMC LONESTAR
6
EXHIBIT C
117
APPROVED AS TO FORM:
Dated:
---------------' 1996
Dated:
---------------' 1996
Dated:
-cr4-p<-===- """1---'()."--'-'1_, 19 9 6
Dated:
--':M;fY-. --"'-];----=-[).-"'--, 19 9 6
Dated:
--------------' 1996
Dated:
--------------' 1996
12400\004\4-D-MOA34.026:022096/34
REEL 3404PAGE 822
WILLIAM K. RENTZ
Deputy County Counsel, Monterey
County
NOLAND, HAMERLY, ETIENNE & HOSS
A Professional Corporation
By
Lloyd w. Lowrey, Jr.
Legal Counsel for MARINA COAST
WATER DISTRICT
ROBERT R. WELLINGTON
Legal Counsel for CITY

Legal Counsel for MRWPCA
THOMPSON, HUBBARD AND OMETER
A Law Corporation

Donald G. Hubbard .
Legal Counsel for J.G. ARMSTRONG
FAMILY MEMBERS
PILLSBURY, MADISON AND SUTRO
By
Thomas P. O'Donnell
Legal Counsel for RMC LONESTAR
6
EXHIBIT C
118
APPROVED AS TO FORM:
Dated:
---------------' 1996
Dated:
~ - - - - - - - - - - - - - 1996
Dated:
---------------' 1996
Dated:
---------------' 1996
Dated: ll!McH .z. q , 1996
Dated:
- - - - - - - - - - ~ - - - 1996
12400\IJ04.\4D-MOA34.026:022096134
- ~ E E ~ - 3404PAGE 823
WILLIAM K. RENTZ
Deputy County Counsel, Monterey
County
NOLAND, HAMERLY, ETIENNE & HOSS
A Professional corporation
By ::-::--7--:::::---::-----::--------
Lloyd w. Lowrey, Jr.
Legal Counsel for MARINA COAST
WATER DISTRICT
ROBERT R. WELLINGTON
Legal Counsel for CITY OF MARINA
'
ROBERT R. WELLINGTON
Legal Counsel for MRWPCA
THOMPSON, HUBBARD AND OMETER
A Law corporation
By
J .G. ARMSTRONG
PILLSBURY, MADISON AND SUTRO
By ~ - - ~ ~ ~ - ~ = - - - - - -
Thomas P. O'Donnell
Legal Counsel for RMC LONESTAR
6
EXHIBIT C
119
APPROVED AS TO FORM:
Dated:
---------------' 1996
Dated:
---------------' 1996
Dated:
1996
Dated:
--------------' 1996
Dated:
---------------' 1996
Dated: /;(1(;-<-c/ .26, 1996
12400\004\4D-MOA34.026:022096134
RlEL 82'1
WILLIAM K. RENTZ
Deputy County Counsel, Monterey
County
NOLAND, HAMERLY, ETIENNE & HOSS
A Professional corporation
By
Lloyd w. Lowrey, Jr.
Legal Counsel for MARINA COAST
WATER DISTRICT
ROBERT R. WELLINGTON
Legal Counsel for CITY OF MARINA
ROBERT R. WELLINGTON
Legal Counsel for MRWPCA
THOMPSON, HUBBARD AND OMETER
A Law Corporation
By
Donald G. Hubbard
Legal Counsel for J.G. ARMSTRONG
FAMILY MEMBERS
6::<?">=''S
PiliLSE!UltY, M.\DISON AND
c?eZ)

Legal Counsel for RMC LONESTAR
6
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.
30' EASEM!NT FOR
ROAO AND UTILITIES
IN F ~ ~ o t OF I.ICWD
AND i RDNG RANCH
I
MRWPCA RESERVED
AREA (7.2 ACRES)
30' TEMPORARY EASEMENT
(EXPIRES ON 7 /1/2005)
ARMSTRONG RANCH PROPERTY
........ ---
.
30' EASEMENT FOR
TEMPORARY ROAO AND
PERMANENT PIPELINES
AND UTILITIES FOR MCWD
-1" - 1000'
~ \
\
1'
35"', SALINAS INTERCEPTOR
W/ 20' PERMANENT EASEMENT
30' EASEMENT FOR
ROAO ANO PIPELINE
FOR ARMSTRONG RANCH
(AREA - 1.8 ACRES)
'I""'
:,..,
,..,
.-
w
DATE: 2/27/96 DRAWN BY: LJK/JHL
EXHIBIT C
121
CALIFORNIA ALL-PURPOSE ACKNOWLEDGMENT
.\EEL 340 4PAGE 826
State of CALIFORNIA
County of
On before me, *SONIA L. ANGELO, NOTARY PUBLIC* *
Date Name and Title ol Off.cer (e.g., "Jane Doe, Notary Public")
personally appeared __ _________ _
Name(s) of
0 personally known to me- OR -IXJ proved to me on the basis of satisfactory evidence to be the
whose name(li:) subscribed to the within instrument
and to me that executed the
same in authorized and that by
signature()!'lon the instrument the person()
or the entity upon behalf of which the person($) acted,
executed the instrument.
- Comm. I 1087856
l SON.\ A L. ANGELO
U) A NO TAR. Y PtmliCCAliFORNIA
WITNESS my hand and official seal.
>.
, Monterey Courttv ..a.
J. .. My Comm. Feb.16,2000 ,l

OPTIONAL-----------------------
Though the information below is not required by taw, it may prove valuable to persons relying on the document and could prevent
fraudulent removal and reattachment of thfs form to another document.
Description of Attached Document
Title or Type of Document: ANNEXATION AGREEMENT AND GROUNDSWATER MITIGATION FRAMEWORK FOR
MARINA AREA LANDS
Document Date: APRIL 12, 1996 Number of Pages:27 wl EXH A-F
Signer(s) Other Than Named Abcve: _,N,_,O:.::N,E'---------------------
Capacity(ies) Claimed by Signer(s)
Signer's Name: THOMAS P MOORE
0 Individual
lQC Corporate Officer
Title(s): PRESIDENT, BOARD OF DIRECTORS
0 Partner - 0 Limited 0 General
0 Attorney-in-Fact
0 Trustee
0 Guardian or Conservator
RIGHTlHUMBPRINT
OF SIGNER
0 Other: Top of thumb here
Signer Is Representing:
MARINA WATER COAST DISTRIC
Signer's Name:------------
0 Individual
0 Corporate Officer
Title(s): --:::::-c--:--c---:--------
0 Partner- 0 Limited 0 General
0 Attorney-in-Fact
0 Trustee
0 Guardian or Conservator
RIGHT THUMBPRINT
OF SIGNER
0 Other: Top of thumb here
Signer Is Representing:
e 1994 National Notary Association 8236 Remmel Ave., P.O. 7184 Canoga Park, CA 91309-7184 Prod. No. 5907
EXHIBIT C
122
CALIFORNIA ALL-PURPOSE ACKNOWLEDGMENT
REEL J404PAGE 827
State of CALIFORNIA
County of MONTEREY
On APRIL 17, 1996 before me, * *SONIA L. ANGELO, NOTARY PUBLIC* *
Date Name and Title of Officer {e.g .. "Jane Doe, NotatyPubftc'1
personally appeared __ *_*MAL-==C=cO=cLM=-'D=-_c"'RAWF==O=cRD=*""""*=*=*=*=*-*------------
Nama(s) of Signer(s)
0 personally known to me -OR to me on the basis of satisfactory evidence to be the person(}(!
whose to the within instrument
and acknowledged to me that executed the
same in and that by
hisll)l6rlt!r signature(tl on the instrument the personlll),
or the entity upon behalf of which the personOO acted,
executed the instrument.
-----------------------OPTIONAL-----------------------
Thoug/1 the informatiOn below is not required by Jaw. it may prove valuable to persons relying on the document and could prevent
fraudulent removal and reattachment of this form to another document.
Description of Attached Document
litle or Type of Document: ANNEXATION AGREEMENT AND GROUNDSWATER MITIGATION FRAMEWORK FO
MARINA AREA LANDS
Document Date: APRIL 17 1996 Number of Pages: 27 w/EXH A-F
Signer(s) Other Than Named Above: _ _,N,O.,NE"'--------------------
Capacity(ies) Claimed by Signer(s)
Signer's Name: MALCOLM D. CRAWFORD
0 Individual
[l[ Corporate Officer
litle(s): SECRETARY, BOAND OF DIRECTORS
0 Partner- 0 Umited 0 General
0 Attorney-in-Fact
0 Trustee
0 Guardian or Conservator
RIGHT THUMBPRINT
OF SIGNER
0 Other.: Top of thumb here
Signer Is Representing:
MARINA WATER COAST DISTRI
Signer's Name:-------------
0 Individual
0 Corporate Officer
litle(s): -:=:-:-:-:--:-:::-=---:------
0 Partner- 0 Limited 0 General
0 Attorney-in-Fact
0 Trustee
0 Guardian or Conservator
RIGHT THUMBPRINT
OF SIGNER
0 Other. Top of thumb here
Signer Is Representing:
C 1994 National Notary Assoclatio.n B23S Remmet Ave., P.O. Bo)( 7184 Canoga Park, CA 91309-7184 Prod. No. 5907 Reorder: Call ToR-Free 1-800-875-6627
EXHIBIT C
123
CALIFORNIA ALL-PURPOSE ACKNOWLEDGMENT
State of CALIFORNIA
County of MONTEREY
On APRIL 12, 1996 before me, * *SONIA L. ANGELO, NOTARY PUBLIC* * * *
Date Nama- and Title of Officer (e.g., "Jane Doe, Notary Publlc1
personally appeared * *THOMAS P. MOORE* * * * * * *
Name(s) of Signer(s)
D personally known to me- OR -Yproved to me on the basis of satisfactory evidence to be the personQl:)
whose name($) to the within instrument
and acknowledged to me that he/5}/tooy executed the
same in his/h)dtheir-authorized and that by
his/tlerfti]Sir signature(t) on the instrument the person(lll,
or the entity upon behalf of which the
executed the instrument.
- Comm.#10BnS.6
SONIA L. ANGELO WITNESS my hand and official seal.

(/) .; NOTARY PUBLIC-CAUFORNIA {J)
) ' Couoty -
J My Comm. Expires Feb.16,2000 T
------------OPTIONAL------------
Though the information below is not required by Jaw. it may prove valuable to persons relying on the document and could prevent
fraudulent removal and reattachment of this form to another document.
Description of Attached Document
EXHIBIT G
Title or Type of Document: MONTEREY REGIONAL WATER POLLUTION CONTROL AGENCY ADDENDUM TO
ANNEXATIO AGREEMENT AND GROUNDWATER MITIGATION FRAMEWORK FOR MARINA AREAL LANDS
DocumentDate: APRIL 12, 1996 NumberofPages:.......:S_I_x __ _
Signer(s) Other Than Named Above: ___________________ _
Capacity(ies) Claimed by Signer(s)
Signer's Name: THOMAS P. MOORE
D Individual
X1Xl Corporate Officer
litle(s): PRESIDENT, BOARD OF DIRECTORS
D Partner - D Limited D General
D Attorney-in-Fact
D Trustee
D Guardian or Conservator
RIGHT THUMSPRIIIIT
OF SIGNER
0 Other: Top of thumb here
Signer Is Representing:
MARINA COAST WATER DISTRIC
Signer's Name:-------------
D Individual
D Corporate Officer
litle(s): ------------
0 Partner- D Limited D General
D Attorney-in-Fact
D Trustee
D Guardian or Conservator
RIGHT THUMBPRINT
OFSlGNEFI
0 Other: Top of thumb here
Signer Is Representing:
C 1994 National Nolary Association 8236 RemmetAve .. P.O. Box 7184 Canoga ParK, CA 91309-7184 Prod. No. 5907 Reortler. Call Toll-Free t-Soo-876-6827
EXHIBIT C
124
CALIFORNIA ALL-PURPOSE ACKNOWLEDGMENT
Rtcl 3404PAGE 829
State of CAI.IFORNIA
County of HO=NTEREY==::::._ ________ _
on 04-17-96 before me,*SONIA L. ANGELO. NOTARY PUBLIC* * *
Data Name and Title of Officer (e.g., Doe, Notary Public1
personally appeared __ *_*_*MAL==-CO_LH=.--D_. _C'-RA:--':w:F-'--'-0-cRD=*:;:*=*=*=*-*-*----------'
Name(s) of Signer(s)
0 personally known to me- OR -Up roved to me on the basis of satisfactory evidence to be the
whose to the within instrument
and acknowledged to me that executed the
same in authorized that by
signature(JQ_ on the instrument the person(lq,
or the entity upon behalf of which the acted,
executed the instrument
- - Comm.#1087356 (!}
.! SONIA L. ANGELO
WITNESS
(f} 11> NOTARY PUBLIC- CAUFORNIA _
-_Monterey Count ..,.
1. My Comlll. Er;pirts
-----------------------OPTIONAL----------------------
Though the information below is not required by law. it may prove valuable to persons relying on the document and could prevent
fraudulent removal and reattachment of this form to another document.
Description of Attached Document
EXHIBIT G
litle or Type of Document:HONTEREY REGIONAL WATER POLLUTION CONTROL AGENCY ADDENDUM TO
ANNEXATION AGREEMENT AND GROUNDWATER MITIGATION FRAMEWORK FOR MARINA AREA LANDS
Document Date: APRIL 17. 1996 Number of Pages: _,6'-----
Signer(s) Other Than Named Above: _N"'O"'NE""'--------------------
Capacity(ies) Claimed by Signer(s)
Signer's Name: MALCOLM D. CRAWFORD
0 Individual
:g_ Corporate Officer
litle(s): SECRETARY BOARD OF DIRECTORS
0 Partner - 0 Limited 0 General
0 Attorney-in-Fact
0 Trustee
0 Guardian or Conservator
RIGHT THUMBPRINT
OF SIGNER
D Other: Top of thumb here
Signer Is Representing:
MARINA COAST WATER DISTRIC
Signer's Name:-------------
0 Individual
0 Corporate Officer
litle(s): -=--:-::----:-::,--::----,-----
0 Partner- 0 Limited 0 General
0 Attorney-in- Fact
0 Trustee
0 Guardian or Conservator
RIGHT 'THUMBPRINT
OF SIGNER
D Other: Top of thumb here
Signer Is Representing:
o 1994 National Notary Association 6236 Remmel Ava., P.O. Box 7184 Canoga Park, CA 91309-7184 Prod. No. 5907 Reorder. Call Toii-Froe 1-800-876-6827
EXHIBIT C
125
REEL.__,404PAGE 83D
STATE OF / U ~ \ J t\eyj[Q
COUNTY OF QJlyQ{)\i\\Q
ACKNOWLEDGMENT
ss.
On '8
~ a NOtrY Public,
JAY MAX ARMSTRONG
, 1996, before me, lLJpcFs-fra.dQ,
duly commissioned and sworn, personally
D personally known to me, or
~ proved to me on the basis of satisfactory evidence
'
appeared
to be the person whose name is subscribed to the within instrument and
acknowledged to me that he executed the same in his authorized
capacity, and that by his signature on the instrument, the person, or
the entity upon behalf of which the person acted, executed the same.
{Seal}
EXHIBIT C
126
STATE OF
COUNTY OF
On LJiY
a Notary
DARRELL L. MURRAY
REEL 3404PAGE 831
ACKNOWLEDGMENT
ss.
, 1996, before me, ___ G_. __ _________ ,
duly commissioned and sworn, personally appeared
i personally known to me, or
0 proved to me on the basis of satisfactory evidence
to be the person whose name is subscribed to the within instrument and
acknowledged to me that he executed the same in his authorized
capacity, and that by his signature on the instrument, the person, or
the entity upon behalf of which the person acted, executed the same.
WITNESS my hand and official
!
{Seal}
EXHIBIT C
127
ACKNOWLEDGMENT
STATE OF CALIFORNIA
COUNTY OF .p.es/f/o
ss.
n ~ L/, /9'1(o , 1996, before me,
a NOary Public, duly commissioned and
CLYDE W. JOHNSON III
D personally known to me, or
8EEL 3 4 0 4 PAGE 8 3 2
" ...
~ /J1. g,_< 2-. '
swor , personally appeared
tf proved to me on the basis of satisfactory evidence
to be the person whose name is subscribed to the within instrument and
acknowledged to me that he executed the same in his authorized
capacity, and that by his signature on the instrument, the person, or
the entity upon behalf of which the person acted, executed the same.
WITNESS my hand and official seal.
{seal}
EXHIBIT C
128
ACKNOWLEDGMENT
REEL 3 4 0 4 PAGE 8 3 3
STATE OF CALIFORNIA
r:e .. s..vo
ss.
COUNTY OF
On f
a Nota y Publlc,
EDWIN A. JOHNSON
, 19 9 6 , before me , ::----=h,e=;="--'m:.c...::__
duly commissioned and sworn, personally appeared
0 personally known to me, or
proved to me on the basis of satisfactory evidence
to be the person whose name is subscribed to the within instrument and
acknowledged to me that he executed the same in his authorized
capacity, and that by his signature on the instrument, the person, or
the entity upon behalf of which the person acted, executed the same.
WITNESS my hand and official seal.
EXHIBIT C
129
ACKNOWLEDGMENT .
REEL 3404PAGE 83:1
STATE OF CALIFORNIA
ss.
COUNTY OF MONTEREY
On March 29, 1996, before me,
a Notary Public, duly commissioned
JOHN A. ARMSTRONG II
personally known to me, or
Jeannine L. Kreider ,
and sworn, personally appeared
D proved to me on the basis of satisfactory evidence
to be the person whose name is subscribed to the within instrument and
acknowledged to me that he executed the same in his authorized
capacity, and that by his signature on the instrument, the person, or
the entity upon behalf of which the person acted, executed the same.
WITNESS my hand and official seal.
{seal}
EXHIBIT C
130
REEL 3404PAGE 835
ACKNOWLEDGMENT
STATE OF CALIFORNIA
ss.
COUNTY OF MONTEREY
On March 29, 1996, before me,
a Notary Public, duly commissioned
IRVINE ARMSTRONG, JR.
)8( personally known to me, or
Jeannine L. Kreider ,
and sworn, personally appeared JAMES
D proved to me on the basis of satisfactory evidence
to be the person whose name is subscribed to the within instrument and
acknowledged to me that he executed the same in his authorized
capacity, and that by his signature on the instrument, the person, or
the entity upon behalf of which the person acted, executed the same.
WITNESS my hand and official seal.
{Seal}
' e . c 0 c 0 0 0 e r
.!.Jeannine L Kreider!:
0 Comm. 11090740 Q
0 - .. OTARV PUBUC. CAUFORNIAO
MONTEReY COUNTY
J .. Comm. Exp. March 17. 2000-:
;o. co; ;,.
EXHIBIT C
131
STATE OF CALIFORNIA
COUNTY OF ~ ~
ACKNOWLEDGMENT
ss.
REEL 3 4 0 4 PAGE 8 3 6
On A.t,ril 4- , 1996, before me, K.a.rt:t. I<. WAI k.er ,
a Not; y Public, duly commissioned and sworn, personally appeared
SUSANNE IRVINE ARMSTRONG
(K personally known to me, or
0 proved to me on the basis of satisfactory evidence
to be the person whose name is subscribed to the within instrument and
acknowledged to me that she executed the same in her authorized
capacity, and that by her signature on the instrument, the person, or
the entity upon behalf of which the person acted, executed the same.
WITNESS my hand and official seal.
Signature {Seal}
EXHIBIT C
132
STATE OF CALIFORNIA
COUNTY OF /r1 ,, & h-it<, Y
,
ACKNOWLEDGMENT
3 4 0 4 PAGE
ss.
/ 2 ;/
On l/j II Y y , 1996, before me, -"</'--"-{ _

__ ,
a Notary Public, duly commissioned and' sworn, personally appeared
WALTER J. McCULLOUGH
personally known to me, or
D proved to me on the basis of satisfactory evidence
to be the person whose name is subscribed to the within instrument and
acknowledged to me that he executed the same in his authorized
capacity, and that by his signature on the instrument, the person, or
the entity upon behalf of which the person acted, executed the same.
WITNESS my
7
Signature
hand and official seal.
PAUl M. HAMERl y
COMM. #1033393
No!ary Pub!ie-taflfomia
Monterrt
1\'Co>IJ!l Elq>. Sepl20, 19911
......
{seal}
EXHIBIT C
133
Rttl 3404PAGE 838
STATE OF CALIFORNIA
On /7/17 ?f
a Notary Public, duly
ELIZABETH S. ARMSTRONG
ACKNOWLEDGMENT
ss.
, 1996, before
commissioned and sworn,
personally known to me, or
fr. Ci{L y ,
personally appeared
0 proved to me on the basis of satisfactory evidence
to be the person whose name is subscribed to the within instrument and
acknowledged to me that she executed the same in her authorized
capacity, and that by her signature on the instrument, the person, or
the entity upon behalf of which the person acted, executed the same.
WITNESS ll!) hand
and official seal.
/
Signature / {Seal}
X
N .. PAUL M. HAMERL y 1
COMM. f11l33393 <
> ,. Notary Public-talaomia W
l ... . 1
EXHIBIT C
134
State of California
County of Alameda
REEL 839
On April 1, 1996, before me, Judith Ann Duit/Notary Public, personally
appeared Ronald L. Blick, personally known to me to be the person
whose name is subscribed to the within instrument and acknowledged
to me that he executed the same in his authorized capacity, and that
by signature on the instrument the person, or the entity upon behalf of
which the person acted, executed the instrument.
WITNESS my hand and official seal.

Judith Ann DUit, Notary Public
)"6 -'' A, C><' ......, D .o o c .:')_ 6 <'\
JUDITHANNDUIT .t
> ' Comm. # 1036845 <
> ,. :... NOTAAY Pt.JStX: CALIFORNIA <
0. Alamedo Ca.oty JJ
c__. 'F Mi Coolm. txpns Aug, 21,-1998 ""'
OPTIONAL INFORMATION
The information below is not required by law. However, it could prevent fraudulent
attachment of this acknowledgment to an unauthorized document.
CAPACITY CLAIMED BY SIGNER (PRINCIPAL)
0 "'DIVIDUAL
OFFICER
President RMC I ONESTAR
TITLE(S)
0 PARTNER(S)
0 ATTORNEY-IN-FACT
0 TRUSTEE(Sl
0 GUARDIAN/CONSERVATOR
0 OTHER: _______ _
SIGNER IS REPRESENTING:
Name of person(s) or entity(ies)
RMCION8ITAu_ ___ _
DESCRIPTION OF ATTACHED DOCUMENT
_Annexation Agreement and Gro!tndwater
Mitigation Framework for Marina Area Lands
TITLE OR TYPE OF DOCUMENT
27 plus exhjbjt A - I
NUMBER OF PAGES
3126196
DATE OF DOCUMENT
OTHER
EXHIBIT C
135
211 HII.I.CREST AVENl!E
MARINA, CA 93933
TELEPHONE ~ 0 8 ) 3843715
FAX (4118) 38-t--0425
CERTIFICATE OF ACKNOWLEDGEMENT
STATE OF CALIFORNIA )
) ss.
County of Monterey )
On April 5. 1996, before me, Joy P. Junsay, City Clerk of the City of Marina,
California, personally appeared James L. Vocelka, Mayor of the City of Marina, California,
personally known to me to be the person whose name is subscribed to the within instrument and
acknowledged to me that he executed the same in his authorized capacity, and that by his
signature on the instrument the person, or the entity upon behalf of which the person acted,
executed the instrument.
WITNESS my hand and official seal of the City of Marina, California.
Dated this 8th day of April, 1996.
EXHIBIT C
136
ACKNOWLEDGMENT
REEL 3404PAGE 841
STATE OF CALIFORNIA
ss.
COUNTY OF MONTEREY
before me, Jeannine L. Kreider On March 29, 1996,
a Notary Public,
DONALD G. HUBBARD
duly commissioned and sworn, personally appeared
X personally known to me, or
D proved to me on the basis of satisfactory evidence
to be the person whose name is subscribed to the within instrument and
acknowledged to me that he executed the same in his authorized
capacity, and that by his signature on the instrument, the person, or
the entity upon behalf of which the person acted, executed the same.
WITNESS my hand and official seal.
{Seal}
END OF
. . - Y .r.,J
EXHIBIT C
137
Michael W. Stamp
Molly Erickson
Olga Mikheeva
Jennifer McNary
David Burnett. Chair
STAMP I ERICKSON
Attorneys at law
February 6, 2014
and Members of the Marina Planning Commission
City of Marina
211 Hillcrest Ave.
Marina, CA 93933
479 Pacific Street, Suite One
Monterey, California 93940
T: (831) 373-1214
F: (831) 373-0242
Subject: February 6, 2014 Planning Commission Agenda Item ?(a)-
Request for Interpretation of Marina Municipal Code
Dear Chair Burnett and Members of the Marina Planning Commission:
This Office represents Ag land Trust, which objects to the proposed action to
"interpret" Marina Municipal Code's Surface Mining and Reclamation Standards. The
Commission should reject the proposed "interpretation."
The interpretation of a State regulation should come from the State, not the
Planning Commission. Yesterday, we submitted a letter to the City that provided the
opinion of the Executive Officer of the State Mining and Geology Board that "extraction
of groundwater is not deemed a surface mining operation under the Surface Mining
and Reclamation Act (SMARA)." We attach our letter as Attachment A.
The proposed "interpretation" before you today is not the Cal Am application.
The Cal Am application is on the Planning Commission agenda for February 13, 2014.
California law Controls the Municipal Code on Surface Mining
Marina's surface mining regulations in the Municipal Code are taken from, and
are identical to, the California Surface Mining and Reclamation Act of 1975 (Pub.
Resources Code, div. 2, ch. 1, 2007).
The Surface Mining and Reclamation Act of 1975 (Pub. Resources Code, div. 2.
ch. 1, 2007) defines "Exploration" as follows:
The search for minerals by geological, geophysical,
geochemical or other techniques, including, but not limited
to, sampling, assaying, drilling, or any surface or
underground works needed to determine the type, extent, or
quantity of minerals present.
Marina Municipal Code section 17.41.110 adopted the State definition, and
defines "Exploration" identically:
EXHIBIT C
138
David Burnett, Chair
and Members of the Marina Planning Commission
February 6, 2014
Page2
The search for minerals by geological, geophysical,
geochemical or other techniques, including, but not limited
to, sampling, assaying, drilling, or any surface or
underground works needed to determine the type, extent or
quality of minerals present.
The staff report takes the astonishing position that even though there is no
mention of water in the Marina Municipal Code, "water was intended to be included
within the definition of 'mineral' by the drafters of the Code." (Staff report, p. 3.) The
staff report appears completely unaware that Marina did not draft the code sections on
surface mining.
The State of California enacted the Surface Mining and Reclamation Act, and it
is intended to be a comprehensive statutory scheme regulating surface mining. The
California legislature hammered out the definitions and meanings in the Act in a lengthy
legislative process with the expert advice of its executive and administrative staff.
There is no evidence before you that the drafters of the State Act intended to include
water within the definition of "mineral" in the context of surface mining.
An interpretation of the State Act should come from the State. It is not up to a
city planning commission to determine how the law should be interpreted. Local and
state agencies who seek interpretations of the Act have made requests to the Attorney
General, and the Attorney General has responded to these requests. (See
Attachments 8, C, D, and E.) That is the approach Marina should take here if it wants
to pursue the proposed "interpretation."
As the Executive Officer of the State Mining and Geology Board stated,
"extraction of groundwater is not deemed a surface mining operation under the Surface
Mining and Reclamation Act (SMARA)." There is no evidence that any agency has ever
expanded the surface mining regulations to include water extraction. No court has ever
agreed with the proposed "interpretation," as the staff report admits. (Staff report, p. 2,
fn. 3.)
California Law Regulates Water Extraction
As the Executive Officer of the State Mining and Geology Board stated. "The City
would benefit to consult the statutes and regulations within the state's Water Code."
The State of California has enacted a Water Code that has been in effect for
more than 100 years. There is a large body of regulations and case law that enforce
and interpret the Water code. The proposed "interpretation" to include the extraction of
water in the definition of "surface mining" operations is unprecedented and conflicts with
California water law.
EXHIBIT C
139
David Burnett, Chair
and Members of the Marina Planning Commission
February 6, 2014
Page 3
The State Mining and Geology Board Regulates Surface Mining in California
To clarify the authority and role of the Surface Mining and Geology Board and its
Executive Officer, we provide the following information for review:
Public Resources Code
Section 672. The board shall represent the state's interest in
the development, utilization, and conservation of the mineral
resources of the state and the reclamation of mined lands,
as provided by law, and federal matters pertaining to mining,
and shall determine, establish, and maintain an adequate
surface mining and reclamation policy. The board shall also
represent the state's interest in the development of
geological information necessary to the understanding and
utilization of the state's terrain, and seismological and
geological information pertaining to earthquake and other
geological hazards. General policies for the division shall be
determined by the board.
Section 673. The board shall also serve as a policy and
appeals board for the purposes of Chapter 7.5 (commencing
with Section 2621) of Division 2.
Under the State Act, State policy shall apply to the conduct of surface mining
operations and the Surface Mining and Geology Board shall not adopt or revise the
state policy, unless a public hearing is first held respecting its adoption or revision.
(Pub. Resources Code, 2756, 2760.)
Attached to this letter is the Duty Statement of Executive Officer of the Surface
Mining and Geology Board. The Executive Officer's duties include, but are not limited
to: (1) communicating the Board's policies to the public and affected agencies and
organizations, and ensuring that those policies are administered and enforced, and
(2) and consulting with the Attorney General's Office as required to provide the Board
with review and interpretation of laws, rules, and regulations.
The "Interpretation" Would Give Special Treatment for Cal Am
Cal Am, like any other private corporation, should follow Marina's permitting
procedures. Cal Am has planned for months to drill boreholes and extract water. Cal
Am's delay for many months is not an adequate reason for Marina to rush through its
process without due care and caution.
EXHIBIT C
140
David Burnett, Chair
and Members of the Marina Planning Commission
February 6, 2014
Page4
Other Serious Problems with the "Interpretation"
No CEQA analysis: The proposed "interpretation" is a project under CEQA and
no CEQA exemption applies. Marina has done no CEQA analysis for this project.
Unlimited extraction of groundwater: The "interpretation" would allow an
unlimited amount of groundwater to be extracted from the coastal zone. The
interpretation would not limit as to the amount of water being extracted. The Salinas
Valley Groundwater Basin is in overdraft. Additional and unlimited extraction of
groundwater, as is contemplated by the proposed "interpretation," could cause
significant harm. You should not be misled by Cal Am's claims about how much water
Cal Am would extract, because what is before you is an interpretation of broad
application to all properties- the new "interpretation" would not be limited to Cal Am.
No water rights: Because no applicable water rights have been established, the
proposed extraction would represent an illegal appropriation of groundwater from the
Salinas Valley Groundwater Basin. In an overdrafted, percolated groundwater basin,
California groundwater law holds that the doctrine of correlative overlying water rights
applies (Katz v. Walkinshaw (1903) 141 Cal. 116), whereby no surplus water generally
is available for new groundwater appropriators, except by prescription.
The proposed "interpretation" ignores whether the developer has water rights to
extract groundwater through a "surface mining" operation. Water rights are very
different from mineral rights. Water rights are a significant environmental issue and
should be considered at this stage. You do not have a legal opinion supporting Cal
Am's interpretation or the inaccurate staff claims about water rights.
Subsidence: The proposed interpretation could cause potentially significant
impacts due to subsidence. The interpretation would place no limitations on the
amount of water to be extracted or the size of the excavation. Subsidence can cause
potentially significant adverse impacts to the property and to neighboring properties,
which can cause harm to the habitat. Marina's soils are largely sandy soils, and near
the coast the soils are almost all sand.
Extraction of water is "development" under the Coastal Act and the Local Coastal
Plan: The proposed interpretation would be inconsistent with the City of Marina Local
Coastal Plan (LCP) and the Coastal Act. Under those policies, the extraction of water is
"development" and therefore is regulated. Development "means, on land, in or under
water ... mining or extraction of any materials; ... change in the intensity of use of
water, or of access thereto .... " (Marina Municipal Code, 17.41.110(B).)
Illegal modification of the Marina Local Coastal Plan: The proposed
"interpretation" seeks to modify and expand the application of the Marina Local Coastal
Plan, and Marina has not followed the proper procedure for amending its Local Coastal
EXHIBIT C
141
David Burnett, Chair
and Members of the Marina Planning Commission
February 6, 2014
Page 5
Plan. There is a very specific procedure in the Marina Municipal Code for amendments
to the Local Coastal Plan. A petition of one or more owners of property affected by the
proposed amendment must be filed with the planning commission. (Marina Municipal
Code, 17 .41.280.) The procedure has not been followed here.
Broad application: cumulative impacts: The proposed interpretation would apply
throughout the City of Marina Coastal Zone, and the cumulative impacts of the
interpretation have not been analyzed. The proposed interpretation would allow
expanded development throughout the Coastal Zone.
Preemption: As stated above, the proposed interpretation is preempted by the
California Surface Mining and Reclamation Act, contradicts 100 years of California
water rights law, the California Water Code, and related statutes and regulations.
Exportation of Groundwater: The proposed interpretation could cause or enable
the violation of the Monterey County Water Resources Agency Act, which prohibits
exportation of groundwater from the overdrafted Salinas Valley Groundwater Basin.
Under the Monterey County Water Resources Agency Act. groundwater cannot be
exported from the Salinas Valley Groundwater Basin due to concern about the "balance
between extraction and recharge" within the basin. (Monterey County Water Resources
Agency Act, 52-21.)
Applicable Land Use Policies: The proposed interpretation of the Municipal Code
violates the adopted and certified groundwater policies, the agricultural and prime
farmland preservation policies, and the resource conservation policies (including the
coastal dune habitat policies mandating the protection of listed endangered species) in
the certified North Monterey County Local Coastal Plan, which the City of Marina is
prohibited from violating. These protected resources are within 100 yards of the
location of the proposed bore holes and will be adversely affected by the proposed
project, yet the City of Marina staff has ignored their presence and the need to fully
evaluate and mitigate the adverse impacts of the long-term project on these resources.
Potential Illegal Takings; Propertv Rights of the Federal Government
The extraction would result in the illegal and wrongful taking of water resources
and minerals from Ag Land Trust property in which the United States Government has
a recorded reversionary interest. The City of Marina and Cal Am have no right to
compromise the retained property rights of the federal government. Cal Am's failure to
produce an adequate water supply for the past 20 years is not an excuse. Failure to
address the interests of the federal government, and the favoring of Cal Am, is a
significant flaw in the proposed interpretation of the code. The interpretation also would
violate enforceable property rights and existing contractual obligations of the Ag Land
Trust. The City has failed to investigate and address these issues.
EXHIBIT C
142
David Burnett, Chair
and Members of the Marina Planning Commission
February 6, 2014
PageS
The requested "interpretation" should be rejected for what it is: a way for Cal Am
to circumvent the law so as to illegally "take" the water rights of others for Cal Am profit.
Interest of Ag Land Trust
The "interpretation" would harm the property of Ag Land Trust. Ag Land Trust
owns property immediately adjacent to the site of the boreholes proposed by Cal Am.
Ag Land Trust owns a large property at West Armstrong Ranch which is in active
agricultural production of artichokes.
Ag Land Trust was founded on August 1, 1984 as the Monterey County
Agricultural and Historic Land Conservancy. Ag Land Trust is a public benefit
corporation created with the intent to preserve farmland and benefit the farmers who
make their living from that land. Ag Land Trust promotes the beneficial use of
agricultural lands for agricultural purposes. For agriculture and its related industries to
survive, Ag Land Trust recognizes the need to preserve and maintain agriculture's basic
resource: land. At present, development pressures are irretrievably converting
Monterey County's land from that of productive agricultural use. Ag Land Trust has
more than 22,000 acres in recorded easements. Value of the annual agriculture
productivity from these protected properties exceeds $200,000,000 gross value per
year. Ag Land Trust has protected more irrigated farmland and has been more
effective in redirecting city growth towards less desirable farmland than any other
agricultural land trust in California.
Reference Documents
We incorporate by reference the following documents: Marina Local Coastal
Plan, City of Marina "Implementation Policies and Procedures for the California
Environmental Quality Act," and North Monterey County Local Coastal Plan. These are
public records in the possession of Marina, which we do not enclose here due to their
size. If Marina does not have copies or is not familiar with the documents, please let
me know and I will be happy to provide them to you.
Request
We urge you to turn down the proposed "interpretation." Cal Am's application for
a permit from Marina is on the agenda for the planning commission's meeting of
February 13, 2014. That is a public hearing of the planning commission, and the public
was notified ten days in advance. Cal Am's application should be addressed then.
Instead of this proposed "interpretation" that is rushed to a special meeting on February
6 with only two days' notice to the public. The potential impacts of the "interpretation" to
all projects in the Coastal Zone and adjacent to the Coastal Zone have not been
addressed and must be evaluated under CEQA.
EXHIBIT C
143
David Burnett, Chair
and Members of the Marina Planning Commission
February 6, 2014
Page 7
We regret that due to a preexisting conflict we may be unable to attelld tonight's
special meeting. We had planned to appear at the scheduled February 13, 2014
meeting as directed by the Planning Commission.
Thank you.
Very truly yours,
~ ~ o ~ ~
Attachments:
A. February 5, 2014 Letter from Molly Erickson to Bruce Delgado, Mayor
B. 66 Ops.CaLAtty.Gen 79 (March 30, 1983)
C. 60 Ops.CaLAtty.Gen. 162 {June 29, 1977)
D. 78 Ops.Cai.Atty.Gen. 343 {November 1995)
E 59 Ops.CaLAtty.Gen. 641 {November 10, 1976)
F. Duty Statement of the Executive Officer of the State Mining and Geology
Board
G. Public Resources Code sections 2755 to 2760
EXHIBIT C
144
Michael W. Stamp
Molly Erickson
Olga Mikheeva
Jennifer McNary
Bruce Delgado, Mayor
City of Marina
211 Hillcrest Ave.
Marina, CA 93933
STAMP I ERICKSON
Attorneys at law
February 5, 2014
479 Pacific Street, Suite One
Monterey, California 93940
T: (831) 373-1214
F: (831) 373-0242
Re: Proposed "interpretation"; February 6, 2014 planning commission agenda
Dear Mayor Delgado:
This Office represents Ag Land Trust, which presents significant new information
about the "interpretation" that Cal Am, the CPUC, and your legal counsel are pressuring
Marina to adopt. At the January 23 planning commission meeting, Ag Land Trust
argued that the "interpretation" violates the state's Water Code and surface mining act.
Today the Executive Officer of the State Mining and Geology Board confirmed
that "extraction of groundwater is not deemed a surface mining operation under the
Surface Mining and Reclamation Act (SMARA)." (Bold emphasis in original.)
Background: Yesterday, the City of Marina released the staff report for the
February 6 planning commission agenda item: a request by Marina planning staff and
Marina's outside land use counsel for an interpretation "that the extraction of water to
determine its mineral content is a surface mining operation." I forwarded the staff report
to the State Mining and Geology Board for its review.
Determination: Today the Board's Executive Officer, Stephen M. Testa, stated:
Based on what you provided me, extraction of groundwater
is not deemed a surface mining operation under the Surface
Mining and Reclamation Act (SMARA). The City would
benefit to consult the statutes and regulations within the
state's Water Code.
In other words, the "interpretation" would conflict with California's Surface Mining
and Reclamation Act and the California Water Code. Mr. Testa's email is attached.
Request: Marina should promptly cancel the February 6 planning commission
meeting because the proposed "interpretation" is inconsistent with state law.
Marina has been seriously misled by the CPUC, Cal Am, and the City's outside
counsel. A simple review of the applicable California statutes would have prevented the
current mess. It also would have prevented the waste of public resources (tirne and
money) spent by Marina's outside legal counsel in promoting the proposed
Attachment A, p. 1 of 7
EXHIBIT C
145
Bruce Delgado, Mayor
City of Marina
February 5,2014
Page 2
"interpretation" to advance the political agendas of CaiAm and the CPUC.
1
Marina
deserved neutral and reliable advice, and Marina did not get it. Marina has been done
a great disservice.
Please respond as soon as possible as to whether the February 6 meeting will
be cancelled. Marina should not waste more public resources on yet another meeting
to consider the proposed "interpretation: Thank you.
Very truly yours .
.
EriJson
Exhibits:
A. February 5, 2013 email from Stephen Testa, Executive Officer of the Surface
Mining and Geology Board
B. Information about the Surface Mining and Geology Board and Mr. Testa
cc: City council members
Layne Long, city manager
Planning commissioners
California Coastal Commission, Central Coast office
1
On January 22, 2014, Ms. Kathy Jenson, Marina's outside legal counsel
located in Orange County, told me that she previously had tvvo or more conference calls
with the CPUC's legal counsel and other persons to discuss this issue. Ms. Jenson told
me that she was not sure who all the other persons on the conference call were, or
what entities they represented. Ms. Jenson was responsible for the January 23
planning commission agenda item urging the commission to adopt the "interpretation"
sought by CaiAm and the CPUC, and she authored the February 6 planning report on
the same point. Ms. Jenson has admitted fhat no case law supports her proposed
"interpretation" (Feb. 6 staff report, fn. 3) and she has not presented any statutory
authority for her "interpretation," either.
Attachment A, p. 2 of 7
EXHIBIT C
146
From; T esht Stt.Jphen"Ji DOC (Stephen.T-esta@oconservation.c:-q;ov)
Date: FcbruJry 5, 2014 3:32AM
tlood mo:nhli;; !v1s. Edcksml:
Buse-d on Wlmt prrrvidtd. rlh:\ cxtnlction of ground1vuttr l!-. not a mining npen:.tkmunder thl! Surl1tcc Mining and
Rc:ekunalion Act ). The Chy would b-enefit to consuh amt rcgulalion:. wirhin the state's \V<l!cr Code.
Regards.
Stephen M. Testa
E.tdCUtfVi! (1JfiL'ei
,\tare Jlhtfng and Bourd
801 K Slr'Cet, Suilc :!015
cS'acrmnen!D. c::A 9581 .f
l'lwne. (916) H2-lli82
stephen tes(.(!{di;;_J:msen--cuion. ca. gov
CONflOF::NTlA1 .!TY NUT ICE.: This conHnunicrnio-n is intended nJll:' ii.ir usc of the individunl.or entity tG \Yhi.::h il is. .addn:ssc--d. This mc:\,;ag;: \.'i1-J1taitF
informa:t\(;n from the $tate of Cahfumia. Suuc "fv!lnirt-g :and noanL which nwy he priv!kg.cd, nmfidcnti;.tl M:d cx.::mpt ffom disd0:;ure under
applkabk l.nw, i-ndndi1ig the Cnmmunicmions Privacy /\ct !f th.:: r..:ad.;r ufthis: 1Xit11tminicm.ion is: n6t the: irUtTld;.;d rccipi-.:m, you arc
ruJtiJ!cU tha! .an) ,Jis<;.cminJtttJn,-disrributi,lli. or cnpying uf1his ct">rtl111tmi;,'a1kn i.s strittly pmhihlt<:d.
EXHIBIT__;{;,__;_
Attachment A, p. 3 of 7
EXHIBIT C
147
Welcome to the State Mining & Geology Board (SMGB) h!tp:lfwww.conserva.tion.ca.gov/smgb/Pagesllndex.aspx
1 of 2
SMGS (/smgb!Pagesflndex.aspx)
Welcome to the State Mining & Geology Board (SMGB)
The- SMGB represents the State's interest in the development utHlzaHon and conservation of mineral resources: reclamation of
mined lands; development of.geo!og!c and seismic hazard informatlon; and to provide a forum for publlc redress<
Note: If >'ou wish to be alerted to the SMGB's ongoing activities, you can be added to the mailing 'list and/or the e-b!ast list Cllck
here asmgb!Paces/connecUons.aspxJ for rncire informatiort
News
The SMGB's regulations UsmgbiMisdDocumenls/OrdinanceRegTexLOODpertaining to mandatory notification an:d
recertification of amended surface mining ofdinan<.:es were approved by the Office of Administrativ-e Law on January 13, 2014
and will be effective April 1, 2014
The SMGB proposes new regulatlons pert3ining to the designation and termin.atlDn of designation of mineral lands in th S.3n
Bernardino Production-Cons:umption Region_ The proposed regulaloCi language Usmgb!Misc!DocumentS
1SanBernReaTextodf1 has been published !n the California Reoutatorv Notice Register 2014 No. 1-Z ffsmab/MiscJDocuments
101z-2014SB.pdf), and is available for public comment through February 17, 2014.
The SMGB proposes new regulations pertsln!ng to the designation and tetmlnation of designaJion Of mineral lands in the
Paim Springs Production-Consumption Region, The nroposed regula tOrt !_anouaoe Usmab!Misc!Docurrents
IPS Proposed Regu!aHan TextOOO has been published in.the CaJifomla Regulatory Notice_ Realster 201-3_ Volume No. 49-Z
llsmgb1Misc1Dowmentsl49z-2013.pdfl. and IS available ior pubic comment through January 20. 2014. The proposed
language refle-cts the need for clarity bett;een such language and the accompanying plates UsmgbJMlsc!Documents
/Plates 1 2%20Pa!mSnrings.pdD, and does not reflect any new proposed areas fur designation, or termination of
designation, when previously considered and adopted by the SMGB in December 2012.
The SMGB's regulations ilsmgbiReou!<JtionsiOocum<mts/14%20Regulalion%20Text%20iclean)%200923Hpdfl pertaining to
the designation, and termination of designated, select mineral lands within the San Gabriel Production-Consumption Region,
County of Los Ange!es, were. approved by the Office of Administrative taw and_wlfl be effectrve Janua0; 1, 2-014.
Although engineering geologists are not specifically designated to conduct activities under the Surface Mining and
Reclamation Act {SMARA), current standards of practice dictate- that certified engineering geologists, or-similarly qualified
gee-professio-nals, should be ini.!OJved in certain surface mining and reclamation taskR SMGBlnformation Report 2013-10
(/smqb/reportslinformationr-eoorts/Documents
1 0
6
/o201nformatione/o20Report%2020 13-.1 0%20Roles%20of%20the%20Eng1fleering%20Geo!ogist
0
/o20L
titled "Roles of the Engineering Geologist under tho California Surface Mining an<l Reclamaiion Act (SMARA)" addresses !his
issue_
Inspection of a surface mining ope-ration is required not !ess than once each- Galendar year to determine if the surface minlng
operation Js in compliance with the requirements of Public Resources Code (PRC) Chapter 9, commencing with Section 2710.
The Surface Mining Inspection Report (Form MRRC-1 ). as referred to in California Code of Regulations (CCR) Section
3504.5(g), was last revised in April1997. At its July 11,2013 regular business meeting. the SMGB approved the revised
Surface Mining Inspection Report Form. rForm MRRC-1 Revised July 11 2013) (/omr/SMARA%20Mines1Documenls
IFINAL7-29-13-%20Fill%20and%20Prlnt%20with%20Changes%20-%20MRRC-1 .pQ!}At its November 14. 2013 regular
business meeting, the SMGB approved its 20-12-2013 Annual Report Usmgblreoorts/Annual%20Repofts/Oocuments
ISMGB%20AR%2012-13 odfl.
The February 21, 2014 committee and regular business meetings will be held in Sacramento, CA. C!ick here Usmgb/Pages
/FEB2014.aspxl fOr the Agenda Notces. The associated reports will be available no tater than February 18, 2014.
NOTE: If you wish to be alerted to this Board's ongoing activities, you can be added to the mailing !ist and/or the e-btast Hst
C!ick hefe Usmab/Paqeslconnections.aspx) for more informatiOn.
f)
EXHIBIT 0
Attachment A, p. 4 of 7
215/2014 10:42 AM
EXHIBIT C
148
Welcome to the State Mining & Geology Board (SMGB) http:/lwww.conservation.ca.gov/smgb/Pages/lndex.aspx
2 of2
SMGB Authorities
The SMGB is composed of nine menlbers appointed bY the Governor, -and confirmed by the Senste, for four-year terms. The SMGB
serves as a regulatory, policy, and appeals body representing the State's interests in geology, geologic and selsmologlc hazards,
of mineral resources and reclamation of lands following surface mining activities.
The SMGB operates within the Department and is gran,ed certain autonomous responsibilities and obligations
under several statutes including the Alquist"Priolo Earthquake Fault Zoning the Seismic Hazards Mapping Act, and the Surface
Mining and Reclamation Act. The SMGB's general authority is granted under Public Resources Code fPRC\ Sections 660-67R
llsmgb/Misc/Documents/Enablers.pdf) Specifically, PRC Section 662(6) requ1res all SMGB members to "represent the general
publicinteresr'.
Most of the documents on this site are in Adobe's Portable Document Format (PDf). Adobe makes a free reader available here.
{httn:/lliWNJ.adobe.com/producls/acrobaUreadstep2.htn1J}
State Mining & Geology Board
Age-nda & Notices l/smgblagerldas/Pagesfcalendar.aspxl
Last Me-eting Results asmgb/Pagesllast meeting rssultaspx)
Reports {fsmgbJreoorts/Paqes/reports.aspxl
RegUlations USmcib/Regulations/Pages/regulations.asp:x)
Guidelines HsmgbJGuidelln-es/Pagesfguidelines.aspxl
Board Roster Usmgblboardroster1Paaes/bo8rd roster.aspx)
Document Policy (lsmq blsta!freports20041May1Documents/0513"3a,pdfl
Events UsmgbJPagesJevenis.aspx)
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Attachment A, p. 5 of 7
215/2014 1 0:42 AM
EXHIBIT C
149
State Mining & Geology Board - Statutes and Regulations http://wwvrconservation.ca.govlsmgb/regulationsiPageslregula ...
1 of 5
SMGB(lsmgb/Pages/lndex.aspx) >Regulations (!smgb/Regulations
/Pages/regulations.aspx)
Surface Mining and Reclamation Act of 1975 (SMARA)
SMARA Statutes (!smgb/Regulations/Documents
/SMARA Statutes.pdf) SMARA Regulations (lsmgb/Requlations
/Documents/SMARA %20Regulations%20Revised%201 0-19-12.pdf)
The Surface Mining and Reclamation Act (SMARA), Chapter 9,
Division 2 of the Public Resources Code, requires the State Mining
and Geology Board to adopt State policy for the reclamation of mined
lands and the conservation of mineral resources. These policies are
prepared in accordance with the Administrative Procedures Act,
(Government Code) and are found in California Code of Regulations,
Title 14, Division 2, Chapter 8, Subchapter 1.
The Surface Mining and Reclamation Act of 1975 (SMARA, Public
Resources Code, Sections 271 0-2796) provides a comprehensive
surface mining and reclamation policy with the regulation of surface
mining operations to assure that adverse environmental impacts are
minimized and mined lands are reclaimed to a usable condition.
SMARA also encourages the production, conservation, and protection
of the state's mineral resources. Public Resources Code Section
2207 provides annual reporting requirements for all mines in the state,
under which the State Mining and Geology Board is also granted
authority and obligations.
Attachment A, p. 6 of 7
2/512014 10:40 AM
EXHIBIT C
150
Stephen Testa, Executive Director, State Mining and Geology __ http://www.conservation.ca.gov/index/AbouttJs/PagesiS!ephen ...
1 of 1
Index (IINDEX/Pagesllndex.aspxl >About Us (lindex/AboutUs/PageslaboutUs.aspxl
Stephen M. Testa was appointed Executive Officer of the
California State Mining and Geology Board in August 2005.
From 1976 until August 2005, he served as an engineering and
environmental consultant for a variety of international firms.
Immediately prior to his appointment as Executive Officer of the
SMGB, he also served since 2001 as a consultant and mine
inspector on behalf of the SMGB. Mr. Testa is the author of 11
books including Geological Aspects of Haz:ardous Waste
Management, The Reuse and Recycling of Contaminated Soils,
and Restoration of Contaminated Aquifers: Petroleum
Hydrocarbons and Organic Compounds, and Petroleum in the
Environment, and over 125 publications. He has served as an
instructor at USC and CSU Fullerton, and has provided
numerous workshops and technical presentations to federal and
state government agencies, universities, historical societies and
various professional associations. Mr. Testa is the
Past-President of the American Geological Institute (AGI} and the
American Institute of Professional Geologists (AIPG), and past
Editor-in-Chief of American Association of Petroleum Geologists
- Division of Environmental Geosciences' (MPG-DEG's) peer review journal "Environmental
Geosciences," and the recipient of the AIPG's Martin Van Couvering Award, MPG-DEG's Research
Award, and the Roy Shlemon Geology Mentor Honorarium for excellence in application of applied earth
science. Mr. Testa currently serves as Vice-Chair of the International Year of Planet Earth National
Committee, and on the Board of Directors for the Petroleum History Institute.
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Copyright 2013 State of California
Attachment A, p. 7 of 7
2/5/2014 10:36 AM
EXHIBIT C
151
66 Ops. Cal. Atty. Gen. 79
OFFICE OF THE ATTORNEY GENERAL OF THE STATE OF
CALIFORNIA
No. 82-1105
66 Ops. Cal. Atty. Gen. 79
March 30, 1983
REQUEST BY:
Page 1
JOHN K. VAN DE KAMP, Attorney General (RODNEY 0. LIL YQUIST, Deputy Attorney
General)
OPINION:
[**79] THE HONORABLE JOHN A. DRUMMOND, COUNTY COUNSEL,
MENDOCINO COUNTY, has requested an opinion on the following question:
Does gravel constitute a "mineral" for purposes of the State Surface Mining and
Reclamation Act of 1975?
CONCLUSION
Gravel constitutes a "mineral" for purposes of the State Surface Mining and
Reclamation Act of 1975.
ANALYSIS
The Legislature has enacted a comprehensive statutory scheme, the State Surface
Mining and Reclamation Act of 1975 (Pub. Resources Code, 2710- 2795) n1 (hereafter
"Act"), regulating the extraction of certain minerals throughout the state.
n 1 All section references hereafter are to the Public Resources Code unless
otherwise specified.
Under the Act, cities and counties are responsible for issuing permits for "surface
mining operations" in their jurisdictions on condition that the operations com ply with the
state regulatory requirements. ( 2728, 2770.)
Section 2735 defines "surface mining operations" as follows:
"'Surface mining operations' means alii, or any part of, the process involved in the
mining of minerals on mined lands by removing overburden and mining directly from the
mineral deposits, open-pit mining of minerals naturally exposed, mining by the auger
method, dredging and quarrying, or surface work incident to an underground mine. Surface
mining operations shall include, but are not limited to:
"(a) lnplace distillation or retorting or leaching.
"(b) The production and disposal of mining waste.
Attachment B, p. 1 of 6
EXHIBIT C
152
Page 2
66 Ops. Cal. Atty. Gen. 79
"(c) Prospecting and exploratory activities." (Emphasis added.)
In order to obtain a permit, an operator must submit a plan of reclamation to the city or
county for approval. ( 2770-2774.) The plan must include "[a] description of the manner
in which reclamation, adequate for the proposed use or potential uses [**80] will be
accomplished" and "[a] statement that the person submitting the plan accepts responsbility
for reclaiming the mined lands in accordance with the reclamation plan." ( 2772, subds.
(h), U).)
The question presented for analysis is whether the provisions of the Act are applicable
to gravel extraction operations. We conclude that they are.
More specifically, the issue is whether gravel may be classified as a "mineral" for
purposes of the Act. Previously, numerous courts have examined whether gravel is a
mineral in other contexts, and sometimes the conclusion has been that gravel is a mineral
(see, e.g., United States ex rei. Tennessee Valley Authority v. Harris (5th Cir. 1940) 115
F.2d 343; Edwards v. Kleppe (9th Cir. 1978) 588 F.2d 671; Hallenbeck v. Kleppe (1oth Cir.
1979) 590 F.2d 852; United States v. 1 ,253.14 Arces of Land, etc., State of Colo. (1Oth Cir.
1972) 455 F.2d 1177; Foster v. Seaton (D.C. Cir. 1959) 271 F.2d 836; Wright v. Carrollton
Gravel & Sand Co. (Ky. 1951) 242 S.W .2d 751; Matthews v. Department of Conservation
(1959) 355 Mich. 589 [96 N.W.2d 160]; Cole v. Berry (1962) 245 Miss. 359 [147 So.2d
306]; Burris v. State ex rei State Highway Commission (1975) 88 N.M. 146 [538 P.2d 418];
Loney v. Scott (1910) 57 Or. 378 [112 P. 172]; Puget Mill Co. v. Duecy (1959) 1 Wash.2d
421 [96 P.2d 571]; Tate v. United Fuel Gas Co. (1952) 137 W.Va. 272 [71 S.E.2d 65],
while at other times the opposite conclusion has been reached (see, e.g., Frostad v.
Kitchens (5th Cir. 1967) 377 F.2d 475; Bumpus v. United States (10th Cir. 1963) 325 F.2d
264; Harper v. Talladega County (1966) 279 Ala. 365 [185 So.2d 388]; Farrell v. Sayre
(1954) 129 Colo. 368 [270 P.2d 190]; Kinderv. LaSalle County Carbon Coal Co. (1923)
310 Ill. 126 [141 N.E. 537]; Wulfv. Schultz (1973) 211 Kan. 724 [508 P.2d 896]; Holloway
Gravel Co. v. McKowen (1942) 200 La. 917 [9 So.2d 228]; Fisher v. Keweenaw Land
Association (1963) 371 Mich. 575 [124 N.W .2d 784]; Resler v. Rodgers (1965) 272 Minn.
502 [139 N.W.2d 379]; Witherspoon v. Campbell (1954) 219 Miss. 640 [69 So.2d 384];
Rickelton v. Universal Constructors Inc. (1978) 91 N.M. 479 [576 P.2d 285]; State ex rei.
State Highway Commission v. Trujillo (1971) 82 N.M. 694 [487 P.2d 122]; Hovden v. Lind
(N.D. 1981) 301 N.W.2d 374; Convis v. State of North Dakota (N.D. 1960) 104 N.W.2d 1;
Beck v. Harvey (1944) 196 Okla. 270 [164 P.2d 399]; Whittle v. Wolff (1968) 249 Ore. 217
[437 P.2d 114]; Heinatz v. Allen (1949) 147 Tex. 512 [217 S.W.2d 994]; State Land Board
v. State Department of Fish & Game (1965) 17 Utah 237 [408 P.2d 707]).
While none of the above cases were concerned with the provisions of the Act, they
indicate the problem in establishing the classification of gravel as a mineral. In Pariani v.
State of California (1980) 105 Cai.App.3d 923, 934, the Court of Appeal reviewed many of
these cases and concluded that "mineral" can have various and inconsistent meanings:
"'Mineral' is a word of general language, and not per sea term of art. It is not capable
of a definition of universal application, but is susceptible to limitation or expansion
according to the intention with which it is used in the particular statute ( Charlestone Stone
Products Co., Inc. v. Andrus (9th Cir. 1977) 553 F.2d 1209; Bumpus v. United States (10th
Cir. 1963) 325 F. 264).
Attachment B, p. 2 of 6
EXHIBIT C
153
Page 3
66 Ops. Cal. Atty. Gen. 79
[**81] "In United States v. Union Oil Company of California (N.D.Cal. 1973) 369
F.Supp. 1289, the court stated that the word 'mineral' is used in many senses and does not
have definite meaning; in its broadest sense, it encompasses that vast realm of everything
other than animal or vegetable; but the word is necessarily subject to interpretation by
reason of its context and particular usage. The term 'mineral' includes a substance of
mineral character broadly defined which is commercially valuable when extracted from the
land, but excludes ordinary materials commonly associated with surface use (see 49
Cai.L.Rev. 763,766-767 (1961))." (Emphases added.)
Pari ani's statement that the term mineral "excludes ordinary materials commonly
associated with surface use" and its law review citation support the more traditional view
that gravel is not a mineral.
Another problem in classifying gravel as a mineral is that it lacks a definite chemical
composition. Gravel is essentially fragments of various types of rock and has physical
properties, such as size, grade, and porosity, but not a uniform chemical nature. In
Barnbauer v. Menjoulet (1963) 214 Cai.App.2d 871, 874, the Court of Appeal described
the general characteristics of gravel and concluded that gravel was not a mineral because
of its composite and fluctuating nature:
"'Speaking to the subject in U.S. v. Aitken, 25 Philippine, 7, the court said: "It is true
that commercial gravel belongs to the mineral kingdom in that it is inorganic and that it is
formed by nature alone. But there is an important distinction between it and any of the so-
called minerals as recognized by the authorities. Practically speaking, all the definitions of
the word 'mineral' agree that such a substance rn ust always have a definite chemical
composition by which it can be easily recognized, in whatever part of the earth it may be
found. There can be no such uniformity in the chemical content of gravel deposits, for the
reason that this depends entirely upon the character of the mineral deposits which have
contributed to their formation. And upon the character, quantity, and proximity of the
minerals to the gravel deposit, their susceptibility to erosion, the violence with which the
erosion is accompanied, the duration of the eroding process, as well as various other facts,
depends the size of the pebbles and the quality of the deposit as commercial gravel. There
is nothing constant in the character of commercial gravel by which to identify it as a
mineral, except that it consists of broken fragments of rock mingled with finer material,
such as sand and clay. Nothing definite can be said of its chemical composition as can be
said of the minerals. Commercial gravel is simply a jumbled mass of fragments of various
minerals (rocks). Science, at least, cannot accept as a distinct subdivision of the mineral
kingdom any substance whose character and attributes are so composite and
fluctuating.""' (Emphases added.)
On the other hand, in Pariani v. State of California, supra, 105 Cai.App.3d 923, 934-
935, the court rejected the Barn bauer "chemical" test for what constitutes a mineral as
being too narrow in scope.
[**82] Significantly, we find that the Legislature has defined a mineral in section 2005
as "any naturally occurring chemical element or compound, or groups of elements and
compounds, formed from inorganic processes and organic substances, including, but not
limited to, coal, peat, and bituminous rock, but excluding geothermal resources, natural
gas, and petroleum."
Attachment B, p. 3 of 6
EXHIBIT C
154
Page4
66 Ops. Cal. Atty. Gen. 79
This definition was placed in the Public Resources Code at the same time that the Act
was enacted (Slats. 1975, ch. 1131, 4, 11) and is applicable for purposes of the Act
"[u]nless the context otherwise requires." ( 2001.)
We can find nothing in the Act requiring a different definition of the term mineral. The
Act defines certain terms other than mineral. ( 2725-2735.) It is true that the definition of
"overburden" in the Act superficially suggests that gravel is not a mineral. Section 2732
states: '"Overburden' means soil, rock or other materials that lie above a natural mineral
deposit or in between mineral deposits, before or after their removal by surface mining
operations." It may be argued that the Legislature has distinguished between "mineral
deposits" and "soil, rock or other materials" in section 2732 and that gravel is more
appropriately classified under the latter category. This argument, however, does not
detract from the general definition of mineral in section 2005 and is rebutted by the obvious
fact that mineral deposits may be found in rocks.
Turning back to section 2005, therefore, we believe that gravel meets the definition of
mineral contained therein. Gravel is formed from inorganic processes and constitutes a
group of naturally occurring chemical elements and compounds. It cannot be said that
section 2005 requires a uniform chemical composition. Hence, gravel meets its broad
definition.
Administrative regulations adopted by the State Mining and Geology Board support the
conclusion that gravel constitutes a mineral for purposes of the Act. n2 Title 14, California
Administrative Code, section 3502 states in part:
"Normally, borrow pitting, streambed skimming, segregation and stockpiling of mined
materials (and recovery of same) would be deemed to the surface mining operations
unless specifically excluded under Section 3506(a)."
"Borrow pitting" involves "[e]xcavations created for the surface mining of rock,
unconsolidated geologic deposits or soil which are not on-site construction ... " and
"streambed skimming" is "[e]xcavation of sand and gravel from stream bed deposits above
the mean summer water level or stream bottom, whichever is higher." (Ibid.)
n2 A regulation interpreting a statute "'is entitled to great weight unless it is clearly
erroneous or unauthorized."' ( International Business Machines v. State Bd. of
Equalization (1980) 26 Cal.3d 923, 931.)
Most important, however, in reaching our conclusion is the fact that the purposes of the
Act support the classification of gravel as a mineral. In Sierra Club v. City of Hayward
(1981) 28 Cal.3d 840,860-861, footnote 12, the Supreme Court stated:
"'It is a well-established legal principle that the purpose of a statute is a guiding star in
defining the language it employs: "'the objective sought to [**83] be achieved by a statute
as well as the evil to be prevented is of prime consideration in [the word's] interpretation,
and where a word of common usage has more than one meaning, the one which will best
attain the purposes of the statute should be adopted, even though the ordinary meaning of
the word is thereby enlarged or restricted .... ""'
The purposes of the Act are best described in sections 2711 and 2712. The former
states:
Attachment B, p. 4 of 6
EXHIBIT C
155
Page 5
66 Ops. Cal. Atty. Gen. 79
"(a) The Legislature hereby finds and declares that the extraction of minerals is
essential to the continued economic well-being of the state and to the needs of the society,
and that the reclamation of mined lands is necessary to prevent or minimize adverse
effects on the environment and to protect the public health and safety.
"(b) The Legislature further finds that the reclamation of mined lands as provided in this
chapter will permit the continued mining of minerals and will provide for the protection and
subsequent beneficial use of the mined and reclaimed land.
"(c) The Legislature further finds that surface mining takes place in diverse areas where
the geologic, topographic, climatic, biological, and social conditions are significantly
different and that reclamation operations and the specifications therefor may vary
accordingly."
The latter statute provides:
"It is the intent of the Legislature to create and maintain an effective and
comprehensive surface mining and reclamation policy with regulation of surface mining
operations so as to assure that:
"(a) Adverse environmental effects are prevented or minimized and that mined lands
are reclaimed to a usable condition which is readily adaptable for alternative land uses.
"(b) The production and conservation of minerals are encouraged, while giving
consideration to values relating to recreation, watershed, wildlife, range and forage, and
aesthetic enjoyment.
"(c) Residual hazards to the public health and safety are eliminated."
With such goals as encouraging the extraction of minerals and protecting the
environment by reclaiming the mined lands, we have little difficulty in broadly reading the
scope of the Act and including gravel as a mineral under its provisions.(See Friends of
Mammoth v. Board of Supervisors (1972) 8 Cal.3d 247, 254-250.) These concerns are
identical whether extracting gravel deposits for the gravel itself or for such a known mineral
as gold that might be contained therein.
The exemptions from the statutory scheme do not support a contrary view. Section
2714 states:
"The provisions of this chapter shall not apply to any of the following activities:
[**84] "(a) Excavations or grading conducted for farming or onsite construction or for
the purpose of restoring land following a flood or natural disaster.
"(b) Prospecting for, or the extraction of, minerals for commercial purposes and the
removal of overburden in total amounts of less than 1,000 cubic yards in any one location
of one acre or less.
"(c) Surface mining operations that are required by federal law in order to protect a
rnining claim, if such operations are conductd solely for that purpose.
"(d) Such other surface mining operations which the board determines to be of an
infrequent nature and which involve only minor surface disturbances."
California Administrative Code, title 14, section 3506, subdivision (a) provides:
Attachment B, p. 5 of 6
EXHIBIT C
156
Page 6
66 Ops. Cal. Atty. Gen. 79
"Exemptions. In addition to the provisions of sections 2714(a), (c) and (d) of the Public
Resources Code, the following activities are exempt from the provisions of SMARA:
"( 1) Prospecting and exploration for minerals of commercial value where less than 1000
cubic yards of overburden is removed in any one location of one acre or less. Such
activities that consist of geological, geochemical, and geophysical mapping, hand surface
sampling of outcrops and soil, and core and other test drilling, that do not involve extensive
excavation, devegetation, or other significant environmental impact, would normally be
considered exempt from the provisions of the Act.
"(2) Any surface mining operation that does not involve either the removal of a total of
more than 1000 cubic yards of minerals, ores, and overburden, or involve more than one
acre in any one location."
While a particular gravel excavation might be exempt from the Act's provisions due to
its small scale of operation, a total exclusion cannot be found in the language used by the
Legislature or be supported by the general goals of the statutory scheme as a whole.
Gravel extraction is known to cause extensive dislocation of surface areas. While this
factor may militate against classifying gravel as a mineral in certain contexts (see Pariani
v. State of California, supra, 105 Cai.App.3d 923, 932-933; Bam bauer v. Menjoulet, supra,
214 Cai.App.2d 871, 872), it provides a strong basis for concluding that gravel operations
are subject to the Act's requirements.
Finally, we note that the Legislature has included gravel in the category of mineral for
the purpose of leasing mineral rights on property owned by the state. Section 6407 states
in part:
"Mineral deposits reserved to the state shall include all mineral deposits in lands
belonging to, or which may become, the property of the state, including but not limited to,
oil and gas, other gases including, but not limited to, nonhydrocarbon and geothermal
gases, oil shale, coal, phosphate, [**85] alumina, silica, fossils of all geological ages,
sodiurn, gold, silver, metals and their compounds, alkali, alkali earth, sand, clay, gravel,
salts and mineral waters, uranium, trona, and geothermal resources." (Emphases added.)
The listing of gravel as a mineral deposit in section 6407 discloses a legislative intent
dating back to 1921. (See Pariani v. State of California, supra, 105 Cai.App.3d 923, 933-
934.) n3
n3 We realize, of course, the limitations of using definitions from one statutory
scheme for another legislative enactment.Aithough all code provisions are to be
"blended together," the same word in a single statute may have two different
meanings. (See Lampleyv. Alvares (1975) 50 Cai.App.3d 124, 128.)
We conclude that gravel constitutes a mineral for purposes of the Act.
Attachment B, p. 6 of 6
EXHIBIT C
157
60 Ops. Cal. Atty. Gen. 162
OFFICE OF THE ATTORNEY GENERAL OF THE STATE OF
CALIFORNIA
Opinion No. SO 76-14
60 Ops. Cal. Atty. Gen. 162
June 29, 1977
REQUEST BY:
EVELLE J. YOUNGER, Attorney General (Russell lungerich, Deputy)
OPINION:
[**162] Requested by: CHAIRMAN, SENATE COMMITTEE ON NATURAL
RESOURCES AND WILDLIFE DIRECTOR, DEPARTMENT OF CONSERVATION
Page 1
The Honorable John A. Nejedly, Chairman, Senate Committee on Natural Resources
and Wildlife and Honorable L.A. Moran, Director, Department of Conservation, have
requested an opinion on the following questions:
To what extent can the state under the Surface Mining and Reclamation Act of 1975 (
Pub. Resources Code 2710- 2793) regulate:
[**163] (a) Mining occurring exclusively on federal land within Death Valley National
Monument;
(b) Mining occurring on state land (such as school lands) within Death Valley National
Monument;
(c) Mining occurring on privately owned patented land;
(d) Mining occurring upon land, portions of which are a combination of federal, state,
and/or patented ownership.
The conclusion is:
The State of California can regulate all mining within the Death Valley National
Monument (hereinafter referred to as Death Valley) regardless of land ownership status,
pursuant to the Surface Mining and Reclamation Act of 1975 (hereinafter SMRA), subject
to preemption in particular instances of conflict with federal law as discussed herein.
INTRODUCTION
Death Valley National Monument consists of approximately 2,067,967 acres of land
noted and specifically designated for its scenic, scientific, historic, and educational
features. Most of the land area (2,048,850.82 acres) of the monument is federally owned,
the remainder consisting of state school lands and privately owned patented land.
The area constituting Death Valley National Monument (Death Valley) was set aside for
monument purposes by Presidential Proclamation No. 2027 in 1933. 47 Stat. 2554 (1933).
Before that action, all land other than that which had been granted to California as school
Attachment C, p. 1 of 10
EXHIBIT C
158
Page 2
60 Ops. Cal. Atty. Gen. 162
lands and that which had been acquired by private owners was part of the federal public
lands. See$= T3*1 9 Stat. 633 (1851 ). As monument land, Death Valley would ordinarily
be closed to mining activity under federal law which imposes a duty on the Secretary of the
Interior to protect and preserve the scenic, educational and historic purposes of the
monument. 16 U.S.C. 1. However, by legislative action in 1933 (16 U.S.C. 447), Death
Valley was specifically opened to mining activity and the federal mining laws pertaining to
public lands. Mining had been conducted within Death Valley since long before it became
a national monument, and continues to this time, although in a more mechanized, large-
scale fashion.
The scale of mining activities in Death Valley National Monument is discussed in the
Report of the House Interior & Insular Affairs Committee, H. Rep. No. 94-1428, 1976 U.S.
Code, Gong. & Ad. News, 2497. The Report states, inter alia:
"In 1974, approximately 3 percent of our annual domestic production of boron minerals
and 100,000 tons of talc were mined from the [Death Valley National] [M]onument area,
which represents less than 1 percent of our annual domestic production. Although a
complete mineral study has not been made of this monument, gold, silver and tungsten
mineralization [**164] are also known to occur in the area. There are presently an
estimated 50,000 unpatented mining millsite locations within the monument. There are 267
patented mining claims covering 7,106.63 acres within the monument.
"There are a total of 10 producing mines in Death Valley National Monument. Current
production from these mines is talc, and ulexite and colemanite which are boron minerals.
There are three talc companies producing from the monument and all have alternate
sources of this material outside the monument. Tenneco is the sole producer of ulexite and
colemanite within the monument, and the company has filed new claims on ulexite and
colemanite deposits outside the monument as well as within it. Death Valley contains the
only known significant domestic reserves of the specific high grade borate colemanite. This
area supplies 80 percent of domestic colernanite production, which is used in the
manufacture of filament grade fiberglass; it could continue the present rate of production
for at least 100 years on known reserves within the monument.
"Borates and talc represent the total current mineral production from Death Valley
National Monument. Their production from the monument has a market value of nearly$ 15
million annually. The main impact on the monument is the use of open pit methods to mine
borates (including ulexite and colernanite) by Tenneco that began in 1971, and older talc
mines. Tenneco's Boraxo pit now is some 3,000 feet by 600 feet and is 220 feet deep.
Both are being enlarged by ongoing mining and the spoil or waste dumps are highly visible
from the scenic road to the Dante's View overlook. Other even larger Tenneco deposits in
the same general area of the monument have proven reserves of borates, but have not
been developed for production as yet.
"Talc production from the monument is currently nearly 100,000 tons per year. Talc
reserves in the monument are estimated to be sufficient to sustain production for over 25
years."
The Surface Mining and Reclamation Act of 1975
The Surface Mining and Reclamation Act of 1975 (Pub. Resources Code 2710-
00001000001 *000001 2793) was enacted to provide for the logical extraction of mineral
Attachment C, p. 2 of 10
EXHIBIT C
159
Page 3
60 Ops. Cal. Atty. Gen. 162
resources within the state concurrent with provisions for protecting the environment and
ensuring subsequent beneficial use of the mined land. Pub. Resources Code 2711,
2712.The act requires cities and counties to serve as lead agencies for these purposes.
Specifically, no new surface mining may be conducted, as of January 1, 1976, unless
the operator obtains a perm it from and files a reclamation plan with the appropriate lead
agency. Pub. Resources Code 2770.
Among other information included in the reclamation plan is a description of the
proposed mining operation, a timetable for mining activities and reclamation, [**165] a
description of the proposed or potential uses of the land after reclamation and a
description of how the reclamation will be accomplished. Pub. Resources Code 2772.
Each reclamation plan must be designed for the specific property which is to be the subject
of the mining activity. Pub. Resources Code 2773. Lead agencies must adopt
ordinances establishing procedures for the filing and approval of reclamation plans and
may require the applicant to post security in order to guarantee reclamation in accordance
with the plan. Pub. Resources Code 2774. Appeal may be made to the State Mining and
Geology Board where the mining is to be conducted in an area of statewide or regional
significance. Pub. Resources Code 2775. Persons having obtained a vested right to
conduct surface mining prior to January 1, 1976, must file reclamation plans for operations
conducted after that date. Pub. Resources Code 2776. See also 59 Ops. Cal. Atty. Gen.
641 (1976), further explaining exemptions under section 2776.
Regulations implementing this act were to have been adopted by the State mining and
Geology Board by January 1, 1977.
Federal Law
On September 17, 1976, Congress adopted Public Law 94-429, repealing the
applicability of mining laws to certain national parks, including Death Valley National
Monument. The legislation was approved and became effective on September 28, 1976.
The federal law closes Death Valley National Monument to further mining entry and
location. 90 Stat. 1342, 3. In addition, it imposes a four-year moratorium prohibiting the
disturbance "for purposes of mineral exploration or development the surface of any lands
which had not been significantly disturbed for purposes of mineral extraction prior to
February 29, 1976 ... " upon land within Death Valley and certain other parks and
monuments. 90 Stat. 1342, 4, 16 U.S.C. 1903. There is a proviso that the Secretary of
the Interior may grant an exception to the moratorium where necessary to make feasible
continued production at an established annual average. Mining activities excepted under
such an exemption are subject to regulations to be issued by the Secretary. Interim
regulations were issued on November 11, 1976, and final regulations became effective on
January 26, 1977. 42 Fed. Reg. 4835 (1977), amending 36 C.F.R.The regulations are
detailed and inclusive and appear to be an attempt to regulate all mining claims within the
affected parks and monuments. 36 C.F.R. 9.2(b).
Section 9.3 of the regulations states that access permits must be obtained by operators
and that no such permits may be issued until a plan of operations has been approved. The
plan of operations is defined in section 9.9 and includes a detailed description of the
proposed mining operation as well as a mining reclamation plan. Subsection (7) requires
the inclusion of "All steps taken to comply with any applicable Federal, State, and local
laws or regulations .... " (Emphasis added.) Such applicable laws would include but would
Attachment C, p. 3 of 10
EXHIBIT C
160
Page4
60 Ops. Cal. Atty. Gen. 162
not be limited to: the National Environmental Policy Act (42 U.S.C. 4331 et seq. )
(NEPA), the California Environmental Quality Act (Pub. Resources Code 21000 et seq. )
(CEQA) and the Surface Mining and Reclamation Act of 1975 ( Pub. Resources Code
2710- 2793) (SMRA) as well as state and local planning and zoning law. Persons wishing
to expand mining operations in one of the park units subject to the four years' moratorium
must also submit a plan of operations. 36 C.F.R. 9.4(b).
The regulations set forth standards for the approval of plans of operations, which
standards are dependent upon the nature of the subject mining claim. 36 C.F.R. 9.10.
Specific requirements are also stated for reclamation of mined lands. 36 C.F.R. 9.11. A
performance bond or security deposit is required upon the approval of a plan of operation.
36 C.F.R. 9.13. The federal law also provides for recordation and examination of the
existing mining claims within the subject parks and monuments for a determination of
validity. See a/so 36 C.F.R. 9.5.
[**166] ANALYSIS
The recently enacted federal law and regulations do not appear to conflict with the
SMRA, both acts being directed toward the same end. As mentioned supra, the
regulations implementing the federal act expressly allow for the application of state and
local law. 36 C.F.R. 9.9(7). Therefore, the state law may be applied to mining activities
wherever the rules of jurisdiction would otherwise permit.
Regulation of Mining Activity on Federal Land
The application of the SMRA to federal land within Death Valley must be analyzed
upon several levels of federal/state relations. The initial question is whether, by virtue of
ownership status alone, the state or local government is prohibited from applying state law
to federal land in Death Valley. This question should be answered in the negative.
Death Valley is held by the federal government in a proprietorial status. General
Services Administration Legislative Jurisdiction Over Federal Lands Within the States as of
June 30, 1957, General Services Administration, at 111. Inventory Reporl on Jurisdictional
Status of Federal Areas Within the States as of June 30, 1962, at 111 (hereafter "Inventory
Report").Lands held in proprietorial status are lands in which" ... the Federal Government
has acquired some right or title to an area in a State, but has not obtained any measure of
the State's authority over the area." Jurisdiction Over Federal Areas Within the States,
Reporl of the lnterdeparlmental Committee for the Study of Jurisdiction Over Federal
Areas Within the States, Pt. II, (Government Printing Office, 1957), at 10-11; United States
v. Bateman, 34 F. 86, 89 (9th Cir., 1888). When the federal government holds land as a
mere proprietor, it has no greater rights than any other landowner and is subject to state
regulation. James v. Oravo Contracting Co., 302 U.S. 134, 141-142 (1937). Thus, the
status of federal ownership alone is not an obstacle to the enforcement of the SMRA on
federal land within Death Valley. Assuming that the law may be constitutionally applied to
privately owned property within the state as a valid exercise of the state's police power, it
may also be applied to federal land within Death Valley. "In an area owned by the Federal
Government where there has been no cession of legislative jurisdiction on the part of the
State government, all State Laws are applicable within the Federal area. Persons present
on such land are [**167] subject to all State laws." U.S. Department of Justice, Federal
Legislative Jurisdiction (1969), at 28; Omaechevarria v. Idaho, 246 U.S. 343 (1918);
Colorado v. Toll, 268 U.S. 228 (1925).
Attachment C, p. 4 of 10
EXHIBIT C
161
Page 5
60 Ops. Cal. Atty. Gen. 162
The State of California has enacted a number of statutes ceding jurisdiction to the
United States or granting the United States concurrent jurisdiction over specifically narned
areas in California. See U.S. Department of Justice, Jurisdiction Over Federal Enclaves in
California (1958); SO 75/79, Indexed Letter Opinion 75/270 of the Attorney General to the
State Lands Com mission (November 28, 1975); Govt. Code 126. A review of State
Lands Commission records and pertinent statutes indicates, however, that there has been
no cession by California of state legislative jurisdiction over Death Valley National
Monument. Hence, the federal government does not exercise either exclusive or partial
derivative legislative authority in Death Valley such as to preclude application of the
SMRA.
Not only are the federal lands in Death Valley National Monument subject to state
legislative jurisdiction but it also appears that the Legislature intended the SMRA to apply
to mining operations on federal land. Public Resources Code section 214 exempts surface
mining operations conducted solely to protect a federal mining claim. Since one can only
stake a federal mining claim on federal land, the inference is clear that the SMRA is
intended to reach mining operations on federal land other than those min or activities
conducted solely to protect federal mining claims.
State regulation may be precluded by other incidents of federal power or constitutional
limitations. The Property Clause is one such limitation which must be considered in this
context. It enables Congress to "make all needful rules and regulations respecting the
Territory or other Property belonging to the United States; ... " U.S. Cons!., art. IV, 3, cl. 2.
The federal government's power to regulate its property is very broad and is analogous to
the police power of the states. Camfield v. United States, 167 U.S. 518, 525 (1897).
Pursuant to its Property Clause power " ... and to further the purposes of the Act of
August 25, 1916, as amended (16 U.S.C. 1) [the act creating the National Park System],"
Congress has ordered a temporary cessation of mining activities within certain areas of the
Park System, including Death Valley National Monument. See 90 Stat. 1342, 2, 16
U.S.C. 1902. This mandate is fully applicable to federal property, that is, to any property
within the Monument for which no patent has been granted and which is not owned by the
State. Such legislation is clearly within the bounds of the Property Clause. See Kleppe v.
New Mexico, 426 U.S. 529 (1976).
When Congress acts to regulate federal land under the Property Clause, the federal
legislation necessarily overrides conflicting state laws under the Supremacy Clause. The
Supremacy Clause, Article VI, clause 2, of the United States Constitution, provides that:
"[!]his Constitution, and the Laws of the United States which shall be made in
Pursuance thereof; ... shall be the supreme Law of the Land; [**168] and the Judges in
every State shall be bound thereby; any Thing in the Constitution or Laws of any State to
the Contrary notwithstanding."
The existence of federal legislation in a field concurrently occupied by state legislation
does not, however, warrant a finding of preemption of the latter unless such a conflict
exists or the federal law clearly indicates an intent to preempt other regulation. Texas Oil
and Gas Corp. v. Phillips Petroleum Co., 277 F. Supp. 366, 369 (W .D. Okla., 1967).
As previously described, the state and federal laws as they apply to surface mining
within Death Valley are directed toward the same end and contain similar provisions. The
Attachment C, p. 5 of 10
EXHIBIT C
162
Page 6
60 Ops. Cal. Atty. Gen. 162
major difference between the two acts is the imposition of a four-year moratorium by the
federal government. In those situations where the federal law may be applied, the
moratorium provisions would preempt state regulation of mining activities on federal land
by operation of the Supremacy Clause. Other cases presenting potential conflict between
the application of state and federal law may arise. Since the nature of these potential
conflicts cannot be predicted at present, it would be inappropriate to speculate about
abstract possibilities that may never materialize.
Nevertheless, at may be concluded that the SMRA of 1975 is applicable to mining
operations on federal land within Death Valley National Monument, except in those cases
where an actual conflict with the federal law would arise, in which cases the federal law
would control exclusively.
Regulation of Mining Activity on State Lands
When Death Valley Monument was created in 1933 by Presidential Proclamation No.
2027, 47 Stat. 2554, state lands within the outside boundaries of Death Valley National
Monument did not become part of the Monument. The Antiquities Act of 1906, U.S.C.
431, authorizes the creation of national monuments only upon "lands owned or controlled
by the Government of the United States .... " The proclamation creating Death Valley
National Monument states that the area included within the Monument is "subject to all
valid existing rights .... " 47 Stat. 2554 (1933). The phrase "subject to all valid existing rights"
excludes from the National Monument all lands which were not "lands owned or controlled
by the Government of the United States" at the time of the creation of the Monument.
Under the act of March 3, 1853, 10 Stat. 244, 6, the sixteenth and thirty-sixth sections of
each township located in Death Valley were granted to the State of California. These lands
are referred to as school lands. Since California acquired these school lands in Death
Valley prior to the 1933 national monument proclamation, these lands were among the
existing rights that were excepted from the Monument.
The State Lands Commission has jurisdiction over state lands, including school lands,
located both inside and outside of Death Valley. Pub. Resources Code 6101 et seq. The
commission has full authority to lease or dispose of these lands and to provide for the
extraction of mineral resources therefrom. Pub. Resources Code [**169] 6216. At
present, the State Lands Commission does not appear to have authority to conduct mining
operations in its own right on state school lands in Death Valley. See generally Pub.
Resources Code 6216 subd. (a). Thus, the question of applying the SMRA to state
school lands within Death Valley may arise only where the State Lands Commission has
issued a mineral lease to a person who would otherwise fall within the scope of that law.
There is no language in the statute or other apparent reason which would exempt these
lessees from the application of the statute. The SMRA states that "no person" shall
conduct mining activities without first obtaining a permit and filing a reclamation plan. Pub.
Resources Code 2770.
The new federal statute regulating mining activity within National Park System areas
does not purport to regulate surface mining on state lands. The new statute makes "all
activities resulting from the exercise of valid existing mineral rights on patented or
unpatented mining claims within any area of the National Park System" subject to
regulations prescribed by the Secretary of Interior. 16 U.S.C. 1902. Since California
obtained its title to its school lands in Death Valley pursuant to the act of March 3, 1853, 10
Attachment C, p. 6 of 10
EXHIBIT C
163
Page 7
60 Ops. Cal. Atty. Gen. 162
Stat. 244, 6, it is clear that California's title to these lands is not based on a "patented or
unpatented rn ining claim" under the federal mining laws.
In Kansas v. Colorado, 206 U.S. 46, 89 (1907), the Court stated that the Property
Clause "clearly ... does not grant the Congress any legislative control over the States, and
must, so far as they are concerned, be limited to authority over the property belonging to
the United States within their limits." Therefore, it is not surprising that the new federal
statute does not purport to regulate surface mining activities on state lands adjacent to the
interior boundaries of Death Valley National Monument.
It should be noted, however, that the new federal regulations governing mining and
mining claims within units of the National Park System define regulated operations to
include" ... all activities and uses reasonably incident... [to mining activities on federal
lands], including construction or use of roads or other means of access on National Park
System lands, regardless of whether such activities and uses take place on Federal, State,
or private lands." 36 C.F.R. 9.2(b). The extent to which the federal government may
regulate activities on state lands cannot be determined under the present state of the law.
(See discussion, infra, at 173.) The wording of the regulations does not suggest that there
is an intent to supplant the state legislation with respect to surface mining activities on
state lands. The language of the regulations appears to extend only to certain types of
activities which are "reasonably incident" to mining on federal lands. See 36 C.F.R.
9.2(b ). This narrow area of federal regulation may well be within the constitutionally
permissible area of extraterritorial regulation under the Property Clause that has been
sanctioned by the Camfield and Kleppe decisions. Since the United States Supreme Court
itself has observed that "the furthest reaches of the power granted by the Property Clause
have not yet been definitively resolved, ... " (Kleppe v. New Mexico, [**170] supra, 426
U.S. at 539), one cannot delineate the precise scope of federal regulatory powers under
the last clause of 36 C.F.R. 9.2(b).
Regulation of Mining Activity on Privately Owned Land
The application of the SMRA to private land holdings in Death Valley requires careful
analysis of the various sources of title. It is not known whether there are any private land
holdings in Death Valley which are based on federal patents issued under public land laws
other than the laws governing the issuance of mining patents. According to the legislative
history of Public Law 94-429, there are probably 267 patented mining claims covering
7,106.63 acres within Death Valley National Monument and an estimated 50,000
unpatented mining millsite locations within the Monument. H. Rep. No. 94-1428 94th
Gong., 2d Sess. 12, reprinted in 1976 U.S. Code Gong. & Ad. News 2497. It is important to
distinguish between these various categories of ownership in order to determine whether
state or federal law is applicable to surface mining conducted on the parcels of land in
question.
A. Private Land Holdings Other Than Patented or Unpatented Mining Claims
If there were any private land holdings within the external boundaries of Death Valley
National Monument when that monument was created in 1933, these parcels were
excepted from the monument. Since national monuments can only be created upon "lands
owned or controlled by the Government of the United States ... ," these lands could not
lawfully be included within the monument. Moreover, the proclamation creating Death
Valley National Monument expressly stated that the area included within the monument
Attachment C, p. 7 of 10
EXHIBIT C
164
Page 8
60 Ops. Cal. Atty. Gen. 162
was "subject to all valid existing rights .... " 47 Stat. 2554 (1933). These private land
holdings which were excepted from the area comprising Death Valley Nationa I Monument
are just like any other private land holdings in the State of California. Persons conducting
mining activities on these lands must comply with the SMRA. The SMRA provides that "no
person" shall conduct mining activities without first obtaining a permit and filing a
reclamation plan. Pub. Resources Code 2770.
The new federal statute prohibiting surface mining within areas of the National Park
System only makes "activities resulting from the exercise of valid existing mineral rights on
patented or unpatented mining claims within any area of the National Park System" subject
to regulations by the Secretary of the Interior. 16 U.S.C. 1902. It is thus clear that this
statute does not purport to govern mining activities on any pre-1933 private land holdings
where the owner's source of title does not emanate from a patented or unpatented mining
claim. Although it is not known whether there are any pre-1933 land holdings of this
character, there are no post-1933 land holdings of this category. After Death Valley
National Monument was created in 1933, the lands within the monument were withdrawn
from the public domain and no private individuals could acquire ownership to parcels of
land within the monument under the general land laws.
[**171] B. Patented Mining Claims
With respect to the 267 patented mining claims, these claims rnust be divided into two
categories: pre-1933 patented mining claims and post-1933 patented mining claims. The
1933 statute which extended the mining laws to Death Valley National Monument
provided:
"That the mining laws of the United States ... are ... extended to the area included within
the Death Valley National Monument in California, or as it may hereafter be extended,
subject, however, to the surface use of locations, entries, or patents under general
regulations to be prescribed by the Secretary of the Interior." 48 Stat. 139 (1933),
repealed, 90 Stat. 1342 3(d) (1976).
1. Post-1933 Patented Mining Claims
Under the 1933 statute, the federal government reserved the right to regulate through
the Secretary of the Interior all mining activities on post-1933 patented and unpatented
mining claims. Since these post-1933 patented and unpatented mining claims are subject
to continuing federal regulation, they are not truly private parcels. To the extent of the
reservation making these parcels subject to regulations promulgated by the Secretary of
the Interior, these lands may still be "lands owned or controlled by the Government of the
United States" and thus still part of Death Valley National Monument. See 16 U.S.C.
431. Insofar as these post-1933 patented and unpatented mining claims are part of Death
Valley National Monument, they are subject to plenary federal regulation under the
Property Clause. Application of the SMRA to these land holdings is thus controlled by the
general analysis earlier in this opinion of the application of the state statute to surface
mining on federal lands.
2. Pre-1933 Patented Mining Claims
A different question is posed by the application of the SMRA to pre-1933 patented
mining claims. The holders of federal mining patents normally obtain fee simple title to the
lands embraced by their patents. See 30 U.S.C. 29. Unless these pre-1933 patents
Attachment C, p. 8 of 10
EXHIBIT C
165
Page 9
60 Ops. Cal. Atty. Gen. 162
contained reservations subjecting them to continuing regulation by the Secretary of the
Interior, the lands obtained pursuant to these pre-1933 mining patents are lands held in
private ownership just like any other private land holdings in the State of California. There
is no reason to believe that the pre-1933 mining patents issued in the area which
subsequently became Death Valley National Monument contained any reservations similar
to those imposed by the 1933 statute which extended the mining laws to Death Valley
National Monument.
Since the pre-1933 patented mining claims are privately owned lands, there appears to
be a presumption that those lands are subject, except in special circumstances, only to
state legislative jurisdiction. It has long been a principle of American land law that
whenever the title to land which had once been the property of the United States has
passed, then that property, like all other property in the state, is subject to state legislation.
Wilcox v. Jackson, 38 U.S. (13 Pet.) 498, 517 (1839). [**172] The new federal act
regulating mining activities in areas of the National Park System expressly states,
however, that it covers "all activities resulting from the exercise of valid existing mineral
rights on patented or unpatented mining claims within any area of the National Park
System" without making any distinction between pre-1933 and post-1933 mining patents.
16 U.S.C. 1902. It is unclear whether Congress intended to regulate mining activities on
lands held in private ownership pursuant to pre-1933 federal mining patents. Some support
for such an intent may be found in 16 U.S.C. 1911, which provides:
"Nothing in this chapter shall be construed to lim it the authority of the Secretary to
acquire lands and interests in lands within the boundaries of any unit of the National Park
System. The Secretary is to give prompt and careful consideration to any offer made by
the owner of any valid right or other property within the areas named in section 1905 of this
title to sell such right or other property, if such owner notifies the Secretary that the
continued ownership of such right or property is causing, or would result in undue
hardship."
It is possible that this provision was intended only to provide relief for the holders of
post-1933 patented mining claims who have now had their limited rights further diminished.
Such an inference is, however, less than clear, and nothing in the legislative history
supports an inference either way.
The regulations promulgated pursuant to Public Law 94-429 provide that the regional
director shall not approve a plan of operations for "existing or new operations if the claim
was patented without surface use restriction, where the operations would constitute a
nuisance in the vicinity of the operation, or would significantly injure or adversely affect
federally owned lands; ... " 36 C.F.R. 9.10(a)(1). Since only pre-1933 mining claims were
patented without surface use restrictions, or without the possibility of imposition of those
restrictions by regulations of the Secretary of the Interior, this language manifests a clear
intent to regulate mining operations on privately owned land pursuant to pre-1933 mining
patents which contained no surface use restrictions. When faced with a problem of
statutory construction, the courts show great deference to the interpretation given the
statute be the officers or agency charged with its administration. Udall v. Tallman, 380
U.S. 1, 16 (1965). Thus, the statute and the regulations taken together appear to manifest
an intent to regulate surface mining activities on privately owned lands where the source of
private ownership is a pre-1933 federal mining patent.
Attachment C, p. 9 of 10
EXHIBIT C
166
Page 10
60 Ops. Cal. Atty. Gen. 162
There is a serious question as to the extent to which the federal government may
regulate surface mining activities on parcels held pursuant to pre-1933 federal mining
patents. While the recent case of Kleppe v. New Mexico indicates that the power to
legislate under the Property Clause "is broad enough to reach beyond territorial limits"
(426 U.S. at 538), the Court earlier in that same opinion recognized that "the Property
Clause is a grant of power only over federal property." Kleppe v. New Mexico, supra, 426
U.S. at 537-538. The only case in which legislation under the Property Clause has been
given effect on private lands adjoining the public domain is Camfield v. United States, 167
U.S. 518 (1897). Camfield was decided in a very narrow factual context-- it held that the
federal government could legislate to prohibit fences built on private land which had the
effect of restricting entry onto public lands. The Court stated:
"Considering the obvious purposes of the structure, and the necessities of preventing
the enclosure of public lands, we think the fence is clearly a nuisance, and that it is within
the constitutional power of Congress to order its abatement, notwithstanding such action
may involve an entry upon the lands of a private individual. The general Government
doubtless has a power over its own property analogous to the police power of the several
States, and the extent to which it may go in the exercise of such power is measured by the
exigencies of the particular case." /d. at 525.
Camfield thus permits the enactment of federal legislation under the Property Clause to
prohibit the maintenance of nuisances on private lands when necessary to protect adjacent
federal property. The extent of the Camfield doctrine has not been fully delineated. To
reiterate the Supreme Court's recent observation in Kleppe v. New Mexico, supra, 426
U.S. 539, "the furthest reaches of the power granted by the Property Clause have not been
definitively resolved, ... " No case has yet held that legislation based on the Camfield
rationale has the effect of preempting concurrent state regulation on private lands. Hence,
there is no need to attempt to predict the full scope of federal power under the Property
Clause in this opinion. As stated earlier in this opinion, the existence of federal legislation
in a field concurrently occupied by state legislation does not warrant a finding of
preemption of the latter unless there is a conflict between the state and federal laws or the
federal law clearly indicates an intent to preempt other regulation.No such conflict is
apparent in the application of the SMRA to pre-1933 patented mining claims in the Death
Valley area. At most, the holders of these patented mining claims will have to comply with
two concurrent levels of regulation. Furthermore, since Public Law 94-429 manifests no
intent to preempt state regulation of surface mining on the lands held under pre-1933
patented mining claims, the SMRA should be fully applicable to these parcels of land.
Regulation of Mining Activity on Lands Under a Combination of Ownership
Actually, there is no land within Death Valley held under a combination of ownership.
Each parcel of land is held in one of the three manners discussed above. Since title to a
particular parcel of land would be the subject of consideration in regard to the applicability
of mining regulations, each such parcel would be considered separately if the total area to
be mined is held under more than one type of ownership.
CONCLUSION
The Surface Mining and Reclamation Act of 1975 is fully applicable to mining activities
in Death Valley National Monument, regardless of the ownership status of the land.
Attachment C, p. 10 of 10
EXHIBIT C
167
78 Ops. Cal. Atty. Gen. 343
OFFICE OF THE ATTORNEY GENERAL OF THE STATE OF
CALIFORNIA
No. 95-502
78 Ops. Cal. Atty. Gen. 343
November 29, 1995
REQUEST BY:
Page 1
DANIEL E. LUNGREN, Attorney General (CLAYTON P. ROCHE, Deputy Attorney
General)
OPINION:
[**343] THE HONORABLE JAMES L. McBRIDE, COUNTY COUNSEL, VENTURA
COUNTY, has requested an opinion on the following question:
Is the removal of soil, rocks, and debris from flood control channels and debris basins
by a flood control district in order to maintain original construction contours a "surface
mining operation" requiring a permit and the preparation of a reclamation plan?
CONCLUSION
The removal of soil, rocks, and debris from flood control channels and debris basins by
a flood control district in order to maintain original construction contours is not a "surface
mining operation" requiring a permit and the preparation of a reclamation plan.
ANALYSIS
The Legislature has enacted a comprehensive statutory scheme, the Surface Mining
and Reclamation Act of 1975 (Pub. Resources Code, 2710- 2796; "SMRA"), n1 under
the administration of the State Mining and Geology Board ("Board"), to protect lands
subject to mining operations. Section 2711 states:
"(a) The Legislature hereby finds and declares that the extraction of
minerals is essential to the continued economic well-being of the state and to
the needs of the society, and that the reclamation of mined lands is necessary
to prevent or minimize adverse effects on the environment and to protect the
public health and safety.
"(b) The Legislature further finds that the reclamation of mined lands as
provided in this chapter will permit the continued mining of minerals and will
provide for the protection and subsequent beneficial use of the mined and
reclaimed land.
[**344] "(c) The Legislature finds that surface mining takes place in diverse
areas where the geologic, topographic, climatic, biological and social conditions
are significantly different and that reclamation operations and the specifications
therefor may vary accordingly."
Attachment D, p. 1 of 7
EXHIBIT C
168
Page 2
78 Ops. Cal. Atty. Gen. 343
n1 All references hereafter to the Public Resources Code are by section number
only.
Section 2712 provides:
"It is the intent of the Legislature to create and maintain an effective and
comprehensive surface mining and reclamation policy with regulation of surface
mining operations so as to assure that:
"(a) Adverse environmental effects are prevented or minimized and that
mined lands are reclaimed to a usable condition which is readily adaptable for
alternative land uses.
"(b) The production and conservation of minerals are encouraged, while
giving consideration to values relating to recreation, watershed, wildlife, range
and forage, and aesthetic enjoyment.
"(c) Residual hazards to the public health and safety are eliminated."
The question presented for resolution concerns whether the removal of soil, rock, and
debris from flood control channels and debris basins by a flood control district in order to
maintain original construction contours is a "surface mining operation" requiring a permit
and reclamation plan under SMRA. We conclude that it is not.
In construing the language and requirements of SMRA, we follow well established rules
of statutory interpretation. We are to "'ascertain the intent of the Legislature so as to
effectuate the purpose of the law."' ( California Teachers Assn. v. San Diego Community
College Dist. (1981) 28 Cal.3d 692, 698.) Statutes "must be given a reasonable and
common sense interpretation consistent with the apparent purpose and intention of the
lawmakers, practical rather than technical in nature, which, upon application, results in
wise policy rather than mischief or absurdity." ( People Ex rei. Deukrnejian v. Che, Inc.
(1983) 150 Cai.App.3d 123, 132.) "The various parts of a statutory enactment must be
harmonized by considering the particular clause or section in the context of the statutory
framework as a whole." ( Moyerv. Workmens' Camp. Appeals Bd. (1973) 10 Cal.3d 222,
230.) Both the legislative history of the statute and the wider historical circumstances of its
enactment may be considered. ( California Mfrs. Assn. v. Public Utilities Com. (1979) 24
Cal.3d 836, 844.)
[**345] Subdivision (a) of section 2770 provides:
"Except as provided in this section, no person shall conduct surface mining
operations unless a permit is obtained from, a reclamation plan has been
submitted to and approved by, and financial assurances have been approved
by, the lead agency .... "
The "lead agency" is defined in section 2728 as follows:
Attachment D, p. 2 of 7
EXHIBIT C
169
78 Ops. Cal. Atty. Gen. 343
'"Lead agency' means the city, county, San Francisco B ay Conservation
and Development Commission, or the board which has the principal
responsibility for approving a surface mining operation or reclamation plan
pursuant to this chapter."
Page 3
Accordingly, under the terms of section 2770, a permit to conduct surface mining
operations must be obtained which has as its predicate the filing of a reclamation plan for
the mined lands and approval of that plan. (See Oro Fino Gold Mining Corp. v. County of
ElDorado (1990) 225 Cai.App.3d 872, 883; 59 Ops.Cai.Atty .Gen. 641, 648, 653 (1976);
see also City of Ukiah v. County of Mendocino (1987) 196 Cai.App.3d 4 7, 57 -58; 66
Ops.Cai.Atty.Gen. 79, 83-85 (1983); 60 Ops.Cai.Atty.Gen. 162, 164-165 (1977).)
Section 2772 sets forth the form and content of the required reclamation plan for the
area where surface mining operations are to occur. Subdivision (c) of section 2772 states:
"The reclamation plan shall include all of the following information and
documents:
"(1) The name and address of the surface mining operator and the names
and addresses of any persons designated by the operator as an agent for the
service of process.
"(2) The anticipated quantity and type of minerals for which the surface
mining operation is to be conducted.
"(3) The proposed dates for the initiation and termination of [the] surface
mining operation.
"(4) The maximum anticipated depth of the surface mining operation.
"(5) The size and legal description of the lands that will be affected by the
surface mining operation, a map that includes the boundaries and topographic
details of the lands, a description of the general geology of the area, a detailed
description of the [**346] geology of the area in which surface mining is to be
conducted, the location of all streams, roads, railroads, and utility facilities
within, or adjacent to, the lands, the location of all proposed access roads to be
constructed in conducting the surface mining operation, and the names and
addresses of the owners of all surface interests and mineral interests in the
lands.
"(6) A description of, and a plan for, the type of surface mining to be
employed, and a time schedule that will provide for the completion of surfaced
mining on each segment of the mined lands so that reclamation can be initiated
at the earliest possible time on those portions of the mined lands that will not be
subject to further disturbance by the surface mining operation.
"(7) A description of the proposed use or potential uses of the mined lands
after reclamation and evidence that all owners of a possessory interest in the
land have been notified of the proposed use or potential uses.
Attachment D, p. 3 of 7
EXHIBIT C
170
78 Ops. Cal. Atty. Gen. 343
"(8) A description of the manner in which reclamation, adequate for the
proposed use or potential uses will be accomplished, including both of the
following:
"(A) A description of the manner in which contaminants will be controlled,
and mining waste will be disposed.
Page4
"(B) A description of the manner in which affected streambed channels and
streambanks will be rehabilitated to a condition minimizing erosion and
sedimentation will occur.
"(9) An assessment of the effect of implementation of the reclamation plan
on future mining in the area.
"(1 0) A statement that the person submitting the reclamation plan accepts
responsibility for reclaiming the mined lands in accordance with the reclamation
plan.
"(11) Any other information which the lead agency may require by
ordinance."
The key statute requiring our analysis is section 2735. It defines "surface mining
operations" for which a permit and plan are required under SMRA. Section 2735 states:
"'Surface mining operations' means all, or any part of, the process involved
in the mining of minerals on mined lands by removing overburden and mining
directly from the mineral deposits, open-pit mining of minerals naturally
exposed, mining [**347] by the auger method, dredging and quarrying, or
surface work incident to an underground mine. Surface mining operations shall
include, but are not limited to:
"(a) In place distillation or retorting or leaching.
"(b) The production and disposal of mining waste.
"(c) Prospecting and exploratory activities."
The Board has implemented section 2735 by adopting the following regulation:
"In addition to the provisions of Sections 2735 of the Act, borrow pitting,
streambed skimming, segregation and stockpiling of mined materials (and
recovery of same)are deemed to be surface mining operations unless
specifically excluded under Section 2714 of the Act or Section 3505 of these
regulations." (Cal. Code Regs., tit. 14, 3501.) n2
n2 All references hereafter to title 14 of the California Code of
Regulations are by regulation number only. Regulation 3501 defines
"streambed skimming" as: "Excavation of sand and gravel from stream
bed deposits above the mean summer water level or stream bottom,
whichever is higher."
Attachment D, p. 4 of 7
EXHIBIT C
171
Page 5
78 Ops. Cal. Atty. Gen. 343
Although the terms "mining," "minerals," and "mined lands" are not defined in SMRA,
definitions thereof predating SMRA are found in the general provisions of the Public
Resources Code. Section 2005 defines "minerals" as follows:
"'Minerals' means any naturally occurring chemical element or compound,
or groups of elements and compounds, formed from inorganic processes and
organic substances, including, but not limited to, coal, peat, and bituminous
rock, but excluding geothermal resources, natural gas, and petroleum." n3
n3 This definition has been adopted by the Board for purposes of
SMRA. (Reg. 3501.)
Section 2200 defines "mine" in the following terms:
"For the purposes of this chapter, 'mine' includes all mineral bearing
properties of whatever kind or character, whether underground, or in a quarry
or pit, or any other sources from which any mineral substance is or may be
obtained."
With these statutory provisions in mind, we turn to the legislative history of SMRA's
enactment. (Slats. 1975, ch. 1131.) It discloses the Legislature's intent to encourage and
regulate surface mining operations and to require the restoration and conservation of
mined lands for future beneficial uses. We have found no indication that SMRA was
intended to apply to the [**348] performance of required maintenance of flood control
channels by government agencies. For example, the report of the Senate Committee On
Natural Resources and Wildlife dated May 9, 1975, states with respect to the proposed
legislation:
"Since 1967, more than 30 states have enacted or strengthened state laws
requiring the rehabilitation of mined lands and there has been increased
discussion of federal legislation mandating a state program. Yet, despite the
magnitude of mining activity, California has no regulation at the state level.
Surface mining in California is, however, subject to numerous controls,
including state air- and water-pollution regulations and city and county
ordinances governing noise, vibration, dust, slopes, fencing, and reclamation.
However, existing controls do not (1) adequately assure that reclamation will in
fact occur, (2) provide a mechanism to resolve jurisdictional problems that can
result when a mineral deposit crosses city and county boundaries, and (3)
recognize the need to protect mineral resource deposits from the effects of
urbanization."
We believe that the removal of soil, rocks, and debris from flood control channels to
restore them to their original contours does not fall within the legislative purposes of
SMRA. Such work on flood control channels is the opposite of what SMRA was intended to
regulate. SMRA contemplates a two step process: (1) surface mining operations and (2)
the requisite reclamation plan to restore the land to a future beneficial use. Flood control
Attachment D, p. 5 of 7
EXHIBIT C
172
Page 6
78 Ops. Cal. Atty. Gen. 343
channel maintenance is a one step process: the removal of soil, rock, and debris to restore
the channel to its prior beneficial use. In short, the maintenance work in question does not
degrade the channels so that reclamation is needed; rather, it improves the channels and
in effect reclaims them.
Hence, to include flood control channel maintenance within the purview of SMRA would
ignore much of SMRA with respect to such operations. No "reclamation" is required after
the maintenance is performed, yet SMRA presupposes and requires reclamation as to the
mining operations it regulates. Reclamation constitutes a major, mandatory portion of the
legislation.
Additionally, we note that subdivisions (a) and (b) of section 2714 specifically exempt
from the requirements of SMRA:
"(a) Excavations or grading conducted for farming or onsite construction or
for the purpose of restoring land following a flood or natural disaster.
[**349] "(b) Onsite excavation and onsite earthmoving activities which are
an integral and necessary part of a construction project that are undertaken to
prepare a site for construction of structures, landscaping, or other land
improvements, including the related excavation, grading, compaction, or the
creation of fills, road cuts, and embankments, whether or not surplus materials
are exported from the site, subject to all of the following conditions:
"(1) All required permits for the construction, landscaping, or related land
improvements have been approved by a public agency in accordance with
applicable provisions of state law and locally adopted plans and ordinances,
including, but not limited to, Division 13 (commencing with Section 21000).
"(2) The lead agency's approval of the construction project included
consideration of the onsite excavation and onsite earthmoving activities
pursuant to Division 13 (commencing with Section 21000).
"(3) The approved construction project is consistent with the general plan or
zoning of the site.
"(4) Surplus materials shall not be exported from the site unless and until
actual construction work has commenced and shall cease if it is determined
that construction activities have terminated, have been indefinitely suspended,
or are no longer being actively pursued."
If the original construction of a flood control channel is exempt from the provisions of
SMRA, it is reasonable to conclude that the restoration of the channel to its original
contours is also exempt. (See Civ. Code, 3536; Reynolds v. State Board of Equalization
(1946) 29 Cal.2 d 137, 140; Hoshour v. County of Contra Costa (1962) 203 Cai.App.2d
602, 608.)
We reject the argument that the specific exemptions in subdivision (i) of section 2714
regarding the Department of Water Resources and the State Reclamation Board
necessarily mean that the removal of soil, rocks, and debris by a flood control district
constitutes "surface mining operations." Subdivision (i) of section 2714 exempts from
SMRA:
Attachment D, p. 6 of 7
EXHIBIT C
173
Page 7
78 Ops. Cal. Atty. Gen. 343
"(1) Surface mining operations conducted on lands owned or leased, or
upon which easements or rights-of-way have been obtained, by the
Department of Water Resources for the purpose of the State Water Resources
Development System or flood control, and surface mining operations on lands
owned or leased, or upon which easements or rights-of-way have been
obtained, [**350] by the Reclamation Board for the purpose of flood control, if
the Department of Water Resources adopts, after submission to and
consultation with, the Department of Conservation, a reclamation plan for lands
affected by these activities, and those lands are reclaimed in conformance with
the standards specified in regulations of the board adopted pursuant to this
chapter. The Department of water Resources shall provide an annual report to
the Department of Conservation by the date specified by the Department of
Conservation on these mining activities.
"(2) Nothing in this subdivision shall require the Department of Water
Resources or the Reclamation Board to obtain a perm it or secure approval of a
reclamation plan from any city or county in order to conduct surface mining
operations specified in paragraph (1 ). Nothing in this subdivision shall preclude
the bringing of an enforcement action pursuant to Section 277 4.1, if it is
determined that a surface mine operator, acting under contract with the
Department of Water Resources or the Reclamation Board on lands other than
those owned or leased, or upon which easements or rights-of-way have been
obtained, by the Department of Water Resources or the Reclamation Board, is
otherwise not in compliance with this chapter."
The language of these particular exemptions was first added to SMRA in 1992 (Stats.
1992, ch. 1077, 2.5), while SMRA has always provided in section 2715:
"No provision of [SMRA] or any ruling, requirement, or policy of the board is
a limitation on any of the following:
"
"
"(c) On the power of any state agency in the enforcement or administration
of any provision of law which it is specifically authorized or required to
administer. ... "
We thus believe that the specific exemptions now contained in subdivision (i) of section
2714 were enacted out of an abundance of legislative caution and not as a declaration that
the work would otherwise constitute "surface mining operations." (See Mono County v.
Industrial Ace. Com. (1917) 175 Cal. 752, 755; Solvang Mun. Improvement Dist. v. Board
of Supervisors (1980) 112 Cai.App.3d 545, 556.)
We conclude that a flood control district's removal of soil, rocks, and debris from flood
control channels and debris basins in order to maintain [**351] original construction
contours is not a "surface mining operation" requiring a permit and the preparation of a
reclamation plan under SMRA.
Attachment D, p. 7 of 7
EXHIBIT C
174
59 Ops. Cal. Atty. Gen. 641
OFFICE OF THE ATTORNEY GENERAL OF THE STATE OF
CALIFORNIA
Opinion No. SO 76-27
59 Ops. Cal. Atty. Gen. 641
November 10, 1976
REQUEST BY:
COUNTY COUNSEL, KERN COUNTY
QUESTION:
Page 1
The Honorable Ralph B. Jordan, County Counsel of the County of Kern, has requested
the opinion of this office on the following questions regarding Public Resources Code
section 2776, one of the two "grandfather" clauses of the Surface Mining and Reclamation
Act of 1975:
1. Are "vested rights" mentioned in section 2776 limited in application to a particular
parcel of land?
2. Does any and all land subjected to "prospecting and exploratory activities" prior to
January 1, 1976, come within the exemption relating to reclamation of mined lands
provided by the third paragraph in section 2776?
3a. Does simply conducting "prospecting and exploratory activities" on particular land
establish a "vested right" which creates an exemption from the permit requirement and/or
the requirements for reclamation of mined lands?
3b. Does incurring "substantial liabilities for work and materials necessary" for
"prospecting and exploratory activities" diligently commenced in good faith prior to January
1, 1976, establish such a vested right?
4. Assuming an exemption from reclamation requirements has been acquired as to a
particular parcel of mined lands, through "prospecting and exploratory activities," does
removing the overburden or mining constitute a "substantial change in operations"
resulting in loss of such exemption?
5. Is a "vested right" or exemption from reclamation requirements transferred to a
successor operator by tacking?
6a. In what cases does the reclamation plan requirement contained in the second
paragraph of section 2776 apply?
6b. Do the provisions of the second paragraph of section 2776 limit the scope of the
exemption frorn reclamation provided in the third paragraph of section 2776?
CONCLUSIONS
Attachment E, p. 1 of 17
EXHIBIT C
175
Page 2
59 Ops. Cal. Atty. Gen. 641
1. The "vested right" mentioned in section 2776 must be claimed with respect to a
particular parcel of land, or a particular mining claim, with specifically defined boundaries.
If no such boundaries have been legally defined, the right is confined to the area in which
surface mining operations have been conducted prior to January 1, 1976, as defined in
Public Resources Code sections 2729 and 2735.
2. The third paragraph of section 2776 creates no exemption as such from the
requirement to reclaim mined lands on which surface mining operations are conducted on
or after January 1, 1976. It merely states that mined lands on which such operations were
conducted prior to, but were completed or abandoned by that date, need not be reclaimed.
If such operations, including "prospecting and exploratory activities," were begun prior to
January 1, and are continued after that date, a reclamation plan must be filed and carried
out for the mined lands on which such continued activities take place.
3a and 3b. Simply conducting "prospecting and exploratory activities" prior to January
1, 1976, on particular land does not establish a vested right to continue conducting such
activities after that date without securing a permit under section 2770. Incurring
"substantial liabilities for work and materials necessary" for such activities diligently
commenced prior to January 1, 1976, in good faith reliance on a previously issued
governmental approval, does establish such a right. The question as to what constitutes
"substantial" work and liabilities is a question of fact which can only be determined on a
case by case basis in a proper exemption proceeding before the lead agency.
4. Since there is no exemption from the Act's reclamation requirements for any mined
lands on which surface mining operations are conducted on or after January 1, 1976, we
assume this question concerns a vested right to conduct such operations without securing
a permit from the lead agency under section 2770. The scope of the vested right is
determined by the terms and conditions of the governmental authorization relied on prior to
January 1, 1976. If such authorization specifically included removing overburden and/or
mining, such activities are included in the vested right. If the authorization did not include
those activities, the question as to whether they constitute a "substantial change in
operations" is a question of fact which must be based on the circumstances of each
individual case, as presented in a proper exemption proceeding before the lead agency.
5. A vested right is created by equitable estoppel, and may only be acquired in the first
instance by the person who relied on a governmental approval and is therefore in a
position to estop the government from revoking the approval However, once the vested
right is established it is a property right subject to constitutional protection, and may be
transferred unless such a transfer would be contrary to public policy or inimical to the basic
purposes of the statute from which the vested right provides an exemption.
6a and 6b. The reclamation plan requirement of the second paragraph of section 2776
applies to all rnined lands in the state on which surface rnining operations are conducted
on or after January 1, 1976, whether or not the owner or operator has acquired a vested
right under the first paragraph of that section. The third paragraph of section 2776 does
not confer an exemption from the reclamation requirement as such, but merely states
explicitly what the second paragraph implies: i.e., that mined lands on which surface
mining operations were conducted prior to January 1, 1976, but were not continued after
that date, need not be reclaimed.
Attachment E, p. 2 of 17
EXHIBIT C
176
Page 3
59 Ops. Cal. Atty. Gen. 641
OPINIONBY:
EVELLE J. YOUNGER, Attorney General; Robert B. Keeler, Deputy
OPINION:
[**643] ANALYSIS
INTRODUCTION
This opinion request concerns a number of questions regarding one of the
"grandfather" clauses of the Surface Mining and Reclamation Act of 1975 n1. The [**644]
Act has two such clauses, sections 2776 and 2792. Section 2776 exempts persons who
have obtained vested rights to conduct surface mining operations prior to January 1, 1976,
from the requirement to obtain a permit from the lead agency pursuant to the Act to
continue such operations. Section 2792 exempts persons who have relied to their
detriment on a governmental authorization for any development, from being affected by the
designation of an area of regional or state-wide significance for purposes of limiting
developments considered incompatible with the exploitation of such an area's mineral
resources. The first grandfather clause-- section 2776 --is the subject of this opinion.
n1 Public Resources Code sections 2710- 2793; hereinafter referred to as the
"Act" or the "1975 Act." Unless otherwise specified, all statutory references herein
are to the Public Resources Code.
The intent of the Legislature in enacting the Surface Mining and Reclamation Act was
to ensure that:
"(a) Adverse environmental effects are prevented or minimized and that
mined lands are reclaimed to a usable condition which is readily adaptable for
alternative land uses.
"(b) The production and conservation of minerals are encouraged, while
giving consideration to values relating to recreation, watershed, wildlife, range
and forage, and aesthetic enjoyment.
"(c) Residual hazards to the public health and safety are eliminated."
Section 2712.
In carrying out that intent, the Legislature required the State Mining and Geology Board
to adopt, on or before January 1, 1977, "state policy for the reclamation of mined lands"
( 2755-2762), and prohibited any person from conducting surface mining operations in
the state, "unless a permit is obtained from, and a reclamation plan has been submitted to,
and approved by, the lead agency .... " n2 2770. The form, content and function of
reclamation plans, and the procedures for reviewing, approving, and appealing decisions
concerning such plans, are described in sections 2772-2775.
Attachment E, p. 3 of 17
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Page4
59 Ops. Cal. Atty. Gen. 641
n2 The lead agency is defined in section 2728 as "the city or county which has
the principal responsibility for approving a surface mining operation pursuant to this
chapter."
The Legislature also required the board to designate by regulation "areas of state-wide
or regional significance" containing known deposits of minerals judged to be of more than
local significance. 2790, 2726, 2727. The purpose of designating such areas is to
declare that premature development of the areas for alternate land uses incompatible with
the extraction of the areas' mineral resources "could result in the permanent loss of
minerals that are of more than local significance." 2726, 2727.
Because it was not the intent of the Legislature in enacting the 1975 Act "to take private
property for public use without payment of just compensation" ( 2713), the Legislature
included section 2776 in the Act, exempting from the requirement to secure a permit under
section 2770 those who had obtained a vested right to conduct surface mining operations
prior to January 1, 1976:
"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
[**645] pursuant to the provisions of this chapter as long as such vested right
continues; provided, however, that no substantial changes may be made in any
such operation except in accordance with the provisions of this chapter. A
person shall be deemed to have such vested rights if, prior to January 1, 1976,
he has, in good faith and in reliance upon a perm it or other authorization, if
such permit or other authorization was required, diligently commenced surface
mining operations and incurred substantial liabilities for work and materials
necessary therefor. Expenses incurred in obtaining the enactment of an
ordinance in relation to a particular operation or the issuance of a permit shall
not be deemed liabilities for work or materials.
"A person who has obtained a vested right to conduct surface mining
operations prior to January 1, 1976, shall submit to the lead agency and
receive, within a reasonable period of time, approval of a reclamation plan for
operations to be conducted after January 1, 1976, unless a reclamation plan
was approved by the lead agency prior to January 1, 1976 and the person
submitting the plan has accepted responsibility for reclaiming the mined lands
in accordance with the reclamation plan.
"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."
We turn now to the questions posed concerning this section.
II
"Are vested rights' mentioned in section 2776 limited in application to a
particular parcel of land?''
The Surface Mining and Reclamation Act of 1975 was included in the Public Resources
Code as Chapter 9 of Division 2. That division is entitled "Geology, Mines and Mining," and
Attachment E, p. 4 of 17
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59 Ops. Cal. Atty. Gen. 641
was originally enacted in 1939. The 1975 Act should be read in the context of the
provisions of the division into which it was placed. Chapter 4 of the Division( 2301-
2326) has to do with the manner in which various kinds of mining claims are located and
their boundaries defined. In the context of Division 2, Chapter 4 suggests that mining
operations are usually carried out in conjunction with specific mining claims having
specifically defined boundaries. This reading is consistent with section 2729 of the 1975
Act, which defines "mined lands" to include the "surface, subsurface, and groundwater of
an area in which surface mining operations will be, are being, or have been conducted,
including private ways and roads appurtenant to any such area," and including all other
operations, facilities and equipment relating thereto.
We note that the above definition of "mined lands" centers around the "area" where
surface mining and related operations are conducted, and we think it not inconsistent with
any provisions of the 1975 Act to equate such an "area" with the specified boundaries of
the mining claim or claims in conjunction with which such [**646] operations are carried
out. We therefore conclude that the "vested right" to conduct surface mining operations
without a permit from the lead agency under section 2776 of the 1975 Act must be
obtained in connection with a mining claim or claims with specified boundaries, such as
boundaries described in claims established under Chapter 4 of Division 2 of the Public
Resources Code, or as boundaries described in the relevant governmental permit or other
authorization pursuant to which such mining operations are carried out. In the absence of
such specified boundaries, the area within which the vested right may be exercised is
confined to the "mined lands" ( 2729) on which "surface mining operations" ( 2735) were
being conducted prior to January 1, 1976. Any substantial change in or expansion of such
operations to a new area or to a new claim may be made only upon obtaining a permit
from the lead agency. 2770, 2776.
This conclusion is consistent with the sections of the Act requiring permits and
reclamation plans for surface mining operations conducted on or after January 1, 1976.
For example, section 2772 describes the form and content of the reclamation plan.
Subdivision (e) of that section requires the plan to give the "size and legal description of
the lands that will be affected by [a surface mining] operation," and to include a map of the
boundaries of such lands. Subdivision (f) requires the plan to provide a time schedule for
completion of operations on each segment of the land, so reclamation can begin on a
given segment as soon as operations are completed on that segment. And section 2773
requires the reclamation plan to be "applicable to a specific piece of property or properties,
... " It is perfectly consistent with these sections to conclude that a person who claims a
vested right to conduct surface mining operations without securing a permit under section
2770 of the Act must claim such a right with respect to specific parcels of land with
specifically described boundaries.
Ill
We take the liberty of addressing the last question posed by the County Counsel at this
point in our opinion, since the discussion of that question will require some background
analysis which will be useful in discussing some of the other questions posed. The last
question is phrased as follows:
"Ga. In what cases does the reclamation plan requirement contained in the
second paragraph of section 2776 apply?
Attachment E, p. 5 of 17
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"6b. Do the provisions of the second paragraph of section 2776 limit the
scope of the exemption from reclamation provided in the third paragraph of
section 2776?"
Page 6
As a statute creating an exception to a general requirement, section 2776 is subject to
the
" ... wise and well-settled principle of statutory construction that where the
enacting clause is general in its language and objects, and a proviso is
afterwards introduced, that proviso is construed strictly, and takes no case out
of the enacting clause which does not fall fairly within its terms.
[**647] In short, a proviso carves special exceptions only out of the enacting
clause; and those who set up any such exception, must establish it as being
within the words as well as within the reason thereof.' [Citations omitted.]
[Moreover] ... the objective sought to be achieved by a statute as well as the
evil to be prevented is of prime consideration in [its] interpretation,' .. .''
People ex rei. S. F. Bay etc. Com. v. Town of Emeryville, 69 Cal. 2d 533, 543
(1968).
In that same spirit, the California Supreme Court has also declared with respect to the
Coastal Zone Conservation Act of 1972, that it
"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. Pub.
Resources Code, 27001. To that end, substantial doubts regarding the
meaning and effect of the exemption provision ( 27 404) should be resolved
against the person seeking exemption." Urban Renewal Agency v. California
Coastal Zone Conservation Com., 15 Cal. 3d 577, 588 (1975).
We note first of all that the Surface Mining and Reclamation Act of 1975 has as one of
its major objectives to require that "mined lands are reclaimed to a usable condition which
is readily adaptable for alternative land uses,"( 2712 subd. (a)), and secondly, that the
section exempting certain persons from the requirement to obtain a permit under the Act
and to carry out such reclamation ( 2776) is remarkably similar to Public Resources Code
section 27404, the exemption provision which was the subject of the above statement by
the Supreme Court. We therefore believe that section 2776 should also be construed
strictly in order to further the purposes of the 1975 Act, and that substantial doubts
regarding the section should be resolved against the granting of exemptions, and in favor
of requiring permits and reclamation plans.
With these general principles in mind, we note that section 2776 exempts persons who
have obtained vested rights to conduct surface mining operations prior to January 1, 1976,
from the requirement to obtain a permit from the lead agency under section 2770 of the
Act, but does not exempt them from the requirement to file with the lead agency a
Attachment E, p. 6 of 17
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Page 7
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reclamation plan for operations to be conducted after January 1, 1976. In other words,
persons who have obtained vested rights before January 1 may continue after that date to
conduct surface mining operations "diligently commenced" prior thereto without having to
cease such operations and obtain a permit from the lead agency. In that sense, section
2776 prevents a temporary moratorium from being applied to ongoing operations. But
while such persons may continue operations commenced prior to January 1, they must
also file reclamation plans to be carried out when they complete or abandon such
operations.
[**648] Therefore, the answer to question number 6a is that the reclamation plan
requirement of the second paragraph of section 2776 applies to all persons who conduct
surface mining operations on or after January 1, 1976, whether such operations were
commenced prior to that date or not. The vested right recognized by section 2776 is only a
right to conduct certain surface mining operations after January 1, 1976, without securing a
permit under section 2770. Section 2776 recognizes no right to conduct surface mining
operations after that date without submitting to the lead agency, "within a reasonable time,"
and receiving approval of, a reclamation plan to be carried out upon completion of such
operations.
Question 6b asks whether the provisions of the second paragraph of section 2776 limit
the scope of the exemption from reclamation provided in the third paragraph of section
2776. We do not believe the third paragraph of section 2776 confers any exemption at all,
as that term is normally used. n3 That paragraph merely makes explicit what is implied by
the second paragraph of section 2776: i.e., that mined lands on which surface mining
operations were conducted prior to January 1, 1976, but are not continued after that date,
need not be reclaimed. The second paragraph of section 2776 requires those who have
obtained a vested right prior to January 1, 1976, and who continue their operations after
that date, to file a reclamation plan. It says nothing about those who have a vested right
and do not conduct operations after that date. But the third paragraph does: it declares
that reclamation plans need not be filed for lands on which surface mining operations were
conducted prior to -- but were completed or abandoned by -- January 1, 1976. If such
operations were not completed or abandoned by, but are continued after that date, a
reclamation plan must be filed.
n3 It has been suggested that the third paragraph of section 2776 creates an
exemption from the reclamation plan requirement of the second paragraph, leaving
little, if any, latitude within which the second paragraph may operate. We disagree.
Such a reading would violate one of the cardinal rules of statutory construction,
recently reaffirmed by the State Supreme Court in Moyerv. Workmen's Comp.
Appeals Bd., 10 Cal. 3d 222, 230 (1973):
" If possible, significance should be given to every word, phrase, sentence
and part of an act in pursuance of the legislative purpose.' (Select Base
Materials v. Board of Equal., supra. 51 Cal. 2d 640, 645); a construction
making some words surplusage is to be avoided.' ( Watkins v. Real
Estate Commissioner (1960) 182 Cal. App. 2d 397,400 [6 Cal. Rptr.
191].) ... Moreover, the various parts of a statutory enactment must be
Attachment E, p. 7 of 17
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harmonized by considering the particular framework as a whole.
[Citations omitted.]"
Page 8
See also, Code Civ. Proc. 1858. We believe that our reading of section 2776, as
discussed in the text, infra, avoids rendering the second paragraph of the section
mere surplusage, provides for both paragraphs two and three to operate fully within
the range of the wording of each, and unduly restricts neither.
The practical effect of the third paragraph of section 2776 is to make it clear that those
who completed or abandoned operations prior to January 1, 1976, need not return to their
former operations and reclaim the land. Otherwise one might argue that persons
conducting ongoing operations after January 1, 1976, must reclaim a// lands on which they
had conducted operations prior to that date, including areas unconnected with areas on
which operations are conducted on or after that date. Read together, however, the second
and third paragraphs of section 2776 make it clear that reclamation plans must be filed
only for those "mined lands" ( 2729) [**649] on which "surface mining operations" (
2735) are conducted on or after January 1, 1976.
IV
The second question posed by the County Counsel reads as follows:
"Does any and all land subjected to prospecting and exploratory activities'
prior to January 1, 1976, come within the exemption relating to mined lands
provided by the third paragraph in Section 2776?"
As noted above, the third paragraph of section 2776 does not create an exemption as
such, but merely states explicitly what the second paragraph of that section implies: that
mined lands on which surface mining operations were conducted prior to, and were
completed or abandoned by, January 1, 1976, need not be reclaimed. Prospecting and
exploratory activities are included in the definition of "surface mining operations" in section
2735. Therefore, there is no requirement to file or carry out a reclamation plan for mined
lands on which prospecting or .exploratory activities were conducted prior to, and were
completed or abandoned by, January 1, 1976. However, if such activities were begun prior
to January 1, 1976, and continued after that date, a reclamation plan must be filed and
carried out for the mined lands on which such continued activities took place or are taking
place.
v
The third question posed by the County Counsel is divided into two subquestions,
which read as follows:
"3a. Does simply conducting prospecting and exploratory activities' on
particular land establish a vested right' which creates an exemption from the
permit requirement and/or the requirements for reclamation of mined lands?"
Attachment E, p. 8 of 17
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59 Ops. Cal. Atty. Gen. 641
"3b. Does incurring substantial liabilities for work and materials necessary'
for prospecting and exploratory activities' diligently commenced in good faith
prior to January 1, 1976 establish such a vested right?"
Page 9
As we pointed out previously, the obtaining of a vested right as a result of surface
mining operations conducted prior to January 1, 1976, merely exempts one from the
requirement to secure a permit from the lead agency under section 2770 before continuing
such operations after that date. It does not exempt one from the requirement to file a
reclamation plan to be carried out upon completion or abandonment of such continued
operations. Therefore, no amount of "prospecting and exploratory activities" conducted
prior to January 1, 1976, will exempt one from the requirement to reclaim the mined lands
on which such activities are carried out after that date.
As to whether one who conducts "prospecting and exploratory activities" on particular
land prior to January 1, 1976, can obtain a vested right to continue such activities after that
date without securing a permit under section 2770, we note that "prospecting and
exploratory activities" are included in the definition of "surface mining operations" under
section 2735. The vested right recognized by section 2776 is a right to conduct such
"surface mining operations" without securing a permit from the lead agency. It seems
obvious, therefore, that upon meeting the requirements of section 2776, one can obtain a
vested right to conduct prospecting and exploratory activities after January 1, 1976 without
securing a section 2770 perm it.
Questions 3a and 3b seek to determine the extent to which such activities must be
pursued prior to January 1 before a vested right will attach.
"In this state, one who in good faith reliance upon a building permit performs
substantial work and incurs substantial liability in connection therewith acquires
a vested right to complete construction notwithstanding an intervening change
in the law that would otherwise preclude construction. [Citations omitted.] The
rule is grounded upon the constitutional principle that property may not be
taken without due process of law. [Citation omitted.]" Aries Dev. Co. v.
California Coastal Zone Conservation Com., 48 Cal. App. 3d 534, 543 (1975).
The law recognizes that a vested right can be obtained to complete the extraction of
the subsurface minerals of a given mining claim or operation without complying with a
subsequent change in the law, just as such a right can be obtained with respect to
completing building or other projects. n4 See, e.g., Ames v. Empire Star Mines Co., Ltd.,
17 Cal. 2d 213,218-21 (1941); Favotv. Kingsbury, 98 Cal. App. 284,291 (1929). Section
2776 is simply a codification of that right as it relates to the continuation of surface mining
operations without having to obtain a permit under section 2770.
n4 Such a vested right confers of course no right to continue mining operations or
any other kind of development activity or use of land in violation of laws in existence
at the time such activities or use commenced, nor to continue activities in the nature
of public nuisances. See, e.g., Pettitt v. City of Fresno, 34 Cal. App. 3d 813 (1973);
CEEED v. California Coastal Zone Conservation Com., 43 Cal. App. 3d 306, 318-19
(1974); Gov. Code 12607.
Attachment E, p. 9 of 17
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Page 10
59 Ops. Cal. Atty. Gen. 641
It is clear, however, that the mere application for a building or mining permit vests no
rights in the development applied for. Selby Realty Co. v. City of San Buenaventura, 10
Cal. 3d 110, 125-56 (1973); Atlantic Richfield Co. v. Board of Supervisors, 40 Cal. App. 3d
1059, 1065 (1974). Neither does the expenditure of funds nor the commencement of work
alone: "Unless the owner possesses all the necessary permits, the mere expenditure of
funds or commencement of construction does not vest any rights in the development.
[Citations omitted.]" People v. County of Kern, 39 Cal. App. 3d 830, 838 (1974). The
necessary permits must first be in hand. Work commenced and liabilities incurred
subsequent thereto and in reliance on those permits can then be counted toward
determining whether such reliance has been substantial enough to obtain a vested right.
n5 See, e.g., California [**651] Central Coast etc. Conservation Com. v. McKeon Constr.,
38 Cal. App. 3d 154, 158-60 (1974). Section 2776 declares as much when it states:
" ... Expenses incurred in obtaining the enactment of an ordinance in relation
to a particular operation or the issuance of a permit shall not be deemed
liabilities for work or materials .... "
n5 It should be noted that no vested right exists in present or future zoning
ordinances. HFH, L TO. v. Superior Court, 15 Cal. 3d 508, 516 (1975). Nor can a
vested right to complete grading or subdivision improvements confer a vested right to
construct buildings which were never approved under prior law. Avco Community
Developers, Inc. v. South Coast Regional Com., 17 Cal. 3d 785 (1976).
Therefore, the issue becomes one of determining at what point-- after the issuance of
the necessary governmental permits and prior to January 1, 1976 --one can be said to
have "diligently commenced surface mining operations and incurred substantial liabilities
for work and materials necessary therefor," in good faith reliance on such permits. In other
words, what constitutes "substantial" construction and liabilities? This issue was
extensively discussed in Cooper v. County of Los Angeles, 49 Cal. App. 3d 34 (1975), in
relation to Public Resources Code sections 21169 and 21170, the validating sections of
the California Environmental Quality Act of 1970. At page 42 of the Court's opinion we
read:
"Substantial' is defined in Black's Law Dictionary (4th ed.) as Of real worth
and importance; of considerable value; valuable .... Something worth while as
distinguished from something without value or merely nominal.' Webster's New
World Dictionary (2d ed.) defines the word as considerable; ample; large; of
considerable worth or value ... .'
"Thus substantial' has connotations of both quantity and comparison and we
are of the opinion that the Legislature intended that either be appropriately
applied. In the case of a relatively small project comparing the amount of
construction and liability to the total would be an appropriate test of
substantiality. In other words, if a large or important part of the project had
Attachment E, p. 10 of 17
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Page 11
59 Ops. Cal. Atty. Gen. 641
already been completed or a large percentage of the liability incurred, the
project would be validated. On the other hand, construction or liability which
was quantitatively substantial would meet the statutory requirement regardless
of the fact that in terms of a large project it might not constitute a substantial
percentage by comparison.
"In other words, for example, $ 100,000 in construction or liability is
substantial by any standard yet on a $ 1 million project it would constitute only
10 percent while on a$ 200,000 project it would constitute 50 percent. A
comparison test under such circumstances would be inappropriate in achieving
the intent of the statute."
Since the trial court in Cooper had failed to indicate "the magnitude of the construction that
was accomplished or the liability incurred," ( id. at p. 44), the case was remanded for
further proceedings. This does not, however, leave us without specific examples of what is
and is not "substantial." In Burger v. County of Mendocino, 45 Cal. App. 3d 322 (1975), the
court held that the expenditure of [**652] $ 6,500 "does not constitute substantial'
construction or liability for construction or material of an 80-unit motel complex." /d. at p.
325. And in Aries Dev. Co. v. California Coastal Zone Conservation Com., supra, 48 Cal.
App. 3d 534, the court included the following instructive discussion on the issue of
substantiality:
"Finally, if we assume, again for the sake of argument, that final approval
was given on November 1, Aries did not perform substantial lawful work and
incur substantial liabilities therefor between that date and November 8, 1972.
"The trial court made a general finding that Aries expended and incurred
liabilities in the total sum of$ 353,912.11 before November 8. However, most
of that sum was for land purchase, architectural and other planning expenses,
demolition of an existing structure, and rough grading. All of those activities
were completed before November 1 and are therefore irrelevant for the reason
they could not have been undertaken in reliance on a final discretionary
government approval yet to be obtained. (See Anderson v. City Council, supra,
229 Cal. App. 2d 79, 89-90.) One who is not yet armed with a presently
effective municipal license to proceed with construction must assume the risk
that, "before final action [has] been taken on [his] application" [citation], the law
might be changed so as to require that his application be denied.' ( Russian Hill
Improvement Assn. v. Board of Permit Appeals, supra, 66 Cal. 2d 34,40.)
"The only expenditure or liability incurred after the November 1 approval
was the$ 28,300 prepaid or incurred on November 6 under the November 6
grading permit. Even as to that sum, Aries listed it as being for grading work
performed between November 6 and November 15. Consequently, only a small
portion of the sum could have been allowable to work performed before
November 8. Furthermore, all grading performed under the November 6 permit
was not lawful Although the trial court found that between November 6 and
November 15 Aries graded 20,000 yards of dirt in preparation for the parking
structure and also graded 80 percent of the property removing 40,000 yards of
Attachment E, p. 11 of 17
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59 Ops. Cal. Atty. Gen. 641
dirt, the November 6 permit was limited to an estimated 15,000 yards of dirt.
The permit expressly provided that it was not a general grading permit. Thus, a
substantial portion of the $ 28,300 incurred for grading work between
November 6 through November 15 was not for lawful work. For a project
estimated to cost$ 2,263,333, the lawful work performed and liabilities incurred
therefor before November 8 were insubstantial as a matter of law." (Emphasis
by court.) /d. at 549-50.
On the other hand, the State Supreme Court ruled in San Diego Coast Regional Com.
v. See-The-Sea, Limited, 9 Cal. 3d 888 (1973), that the expenditure of$ 79,000 [**653] in
construction costs plus finance charges, all incurred prior to a change in permit
requirements, and in good faith reliance on a previously issued building permit for a
condominium project, constituted substantial expenditures. Although that case did not
involve vested rights as such, but a purely statutory exemption, it is indicative of what
would undoubtedly be considered "substantial" work and liabilities under section 2776.
Between Burger and Aries on the one hand, and See-The-Sea on the other there is, of
course, considerable latitude for line drawing. Any determination as to whether a given
amount of work completed or liabilities incurred, which falls somewhere between those
cases, is "substantial," must be made on the facts of each individual case. We do believe,
however, that the above cases provide sufficient guidance to conclude that simply
conducting a nominal amount of "prospecting and exploratory activities" on particular land
does not establish a vested right, whereas diligently commencing such activities and
incurring substantial liabilities for work and materials necessary therefor prior to January 1,
1976, in good faith reliance on whatever governmental permits or other authorizations
were required under prior law in the particular case, does establish such a right.
VI
The County Counsel's fourth question asks:
"Assuming an exemption from reclamation requirements has been acquired
as to a particular parcel of mined lands, through prospecting and exploratory
activities,' does removing the overburden or mining constitute a substantial
change in operations' resulting in loss of such exemption?"
As we have noted before, there is no exemption from the reclamation requirements of
the Act for any surface mining operations conducted on mined lands on or after January 1,
1976. We therefore assume that this question concerns an exemption from the
requirement to obtain a permit from the lead agency under section 2770, not a so-called
exemption from the Act's reclamation requirements.
This question poses two issues. First, how does one determine the scope of the vested
right recognized by section 2776, and second, what constitutes a substantial change
therefrom, once the scope of the right has been determined.
"Acquisition of [a vested] right is grounded on equitable principles of
estoppel. [Citations omitted.]ln other words, an owner of property acquires a
vested right to construct a building only where the conduct of the government
amounts to a representation that such construction is fully approved and legal,
subject only to minor alterations, and in reliance on such representation the
owner materially changes position.
Attachment E, p. 12 of 17
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... " [**654] Aries Dev. Co. v. California Coastal Zone Conservation Com.,
supra, 48 Cal. App. 3d at 548.
Page 13
If the acquisition of a vested right to complete a given project without complying with a
change in the law depends on good faith reliance on a governmental representation that
the project is "fully approved and legal," and if the owner can thereafter estop the
government from applying a change in the law to his project, and from denying that it had
in fact approved his project, then the scope of the vested right must be limited by the
scope of the governmental representation on which the owner relied, and which constitutes
the basis of the estoppel. In other words, one cannot rely on an approval that has not been
given, nor can one estop the government from applying a change in the law to, or from
denying that it has approved a project it has not in fact approved. Therefore, the extent of
the vested right is determined by the terms and conditions of the permit or approval on
which the owner relied before the law which governs his project was changed. See Avco
Community Developers, Inc. v. South Coast Regional Commission, supra, 17 Cal. 3d 785.
This principle was accepted, though not clearly articulated, by the court in
Environmental Coalition of Orange County, Inc. v. Avco Community Developers, Inc., 40
Cal. App. 3d 513 (1974). In that case, the developer was seeking a vested right to
complete a large, multi-faceted development on three tracts of land without obtaining a
coastal commission permit under the Coastal Zone Conservation Act of 1972. Various
governmental approvals had been obtained, including general plan amendments, planned
development zoning ordinances, tentative and final parcel maps, and various grading
permits. No building permits had been issued, but the developer had expended substantial
amounts of rnoney for grading and site preparation. Under these facts, the court concluded
that:
"The development' of defendant's property under the grading permits issued
before February 1, 1973 [the effective date of the act's permit requirement] is
not subject to the act. We use the term development' as including all activity for
which grading permits were required and which was authorized by the grading
permits issued." /d. at 521-22.
However, the court also held that whether the terms and extent of the other approvals
granted the developer were sufficiently broad to exempt the entire project from the permit
provisions of the Coastal Act, presented a triable issue of fact to be resolved by the trial
court:
"We make no determination respecting defendant's contention
governmental approval of its subdivision and parcel maps, including itemized
developments' in connection therewith, under the decision in See The Sea or
the common law doctrine of vested rights, authorizes construction of its
projects' in toto without a coastal permit. The development' included in a
building or grading permit is adequately defined by the [**655] terms of the
Attachment E, p. 13 of 17
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Page 14
59 Ops. Cal. Atty. Gen. 641
permit, its nature and the law requiring such, justifying the conclusion work
performed pursuant thereto is not subject to subsequent permit requirements.
However, the development' included in the approval of subdivision or parcel
maps may not be sufficiently definitive to justify the conclusion work performed
pursuant thereto was part of a construction' or project' encompassing more
than the preparation of land for subdivision purposes in conformity with the
approved maps. In the event it is contended the terms of the approval, the
nature thereof and the law requiring such do not adequately define the
development' authorized thereby, proof of the development' permissible
thereunder would raise an additional issue of fact." /d. at 524-25.
In other words, the allowable scope of a given project is determined by the terms of the
governmental approval which authorizes the project. A developer who substantially relies
to his detriment on such an approval before a change in the law, has acquired a vested
right to complete the project described in the approval, without complying with the changed
law. He has not acquired a vested right to go beyond the terms and conditions of that
approval, nor to go beyond the project described therein. Avco Community Developers,
Inc. v. South Coast Regional Commission, supra; Spindler Realty Corp. v. Manning, 243
Cal. App. 2d 255 (1966).
Therefore, the scope of a vested right obtained under section 2776 by a person who
has conducted substantial prospecting and exploratory activities prior to January 1, 1976,
will be determined by the terms and conditions of any governmental permit or other
authorization relied upon in conducting such activities. If such permit authorized only
prospecting and exploratory activities, then the vested right is limited to those activities. If
additional activities were authorized, then the vested right would extend to the authorized
additional activities. Any substantial change in or expansion of operations beyond the
terms of the previous authorization or permit requires a section 2770 permit from the lead
agency. n6
n6 We do not address the question of the existence or scope of any potential
vested rights in those cases where no governmental permit or authorization was
required prior to January 1, 1976. Although section 2776 suggests that such cases
exist(" ... if such permit or other authorization was required .... "),no such case has
been brought to our attention.
That brings us to the second issue raised by question number four: what constitutes a
substantial change from an exempted project, once the scope of the vested right has been
determined. This is, of course, a factual question which can only be finally determined on
the circumstances of each individual case. n7 However, any change in the project or
operation which would require an additional permit or other governmental approval under
any law existing prior to January 1, 1976, would certainly constitute such a substantial
change. That in itself would [**656] indicate that the changed project had not received all
necessary governmental approvals under prior law, and that the mine operator could
therefore not have relied on any such nonexistent approvals in commencing the changes
in his project. If an operator wishes to change or expand his operation in a way which is
Attachment E, p. 14 of 17
EXHIBIT C
188
Page 15
59 Ops. Cal. Atty. Gen. 641
not authorized by the terms of any governmental approval obtained before January 1,
1976, but does not require any additional approvals under prior law, the question whether
such changes are substantial and thus require a section 2770 permit from the lead agency
is a determination of fact which must be made by the lead agency on a case by case basis
in a proper exemption proceeding.
n7 The leading authority on this question is People ex ref. S.F. Bay, etc. Com. v.
Town of Emeryville, supra, 69 Cal. 2d 533. See especially footnote 5 at p. 548 of the
opinion.
VII
The County Counsel's fifth question asks whether a vested right or exemption from the
Act's reclamation requirements can be transferred to a successor operator by "tacking."
We assume this question simply asks whether the vested right is a property right, and
whether it is transferrable through sale or other means, as are other property rights. We
also assume, as we have with all other questions, that this question concerns a vested
right to conduct surface mining operations without a section 2770 permit from the lead
agency, since, as previously noted, there is no exemption from the Act's reclamation
requirements for any such operations conducted on or after January 1, 1976.
As noted above, the "acquisition of [a vested] right is grounded on equitable principles
of estoppel." Aries Dev. Co. v. California Coastal Zone Conservation Com., supra, 48 Cal.
App. 3d at 548; Spindler Realty Corp. v. Manning, supra, 243 Cal. App. 2d at 269;
Anderson v. City Council, 229 Cal. App. 2d 79, 89 (1964). That is, once the government
represents to an applicant that his project is fully approved, and the applicant thereafter
acts in reliance on that approval by incurring substantial liabilities or performing substantial
construction, the applicant is in a position to estop the government from applying any
subsequent change in the law to the project so as to render it illegal. Aries, supra, at 548.
By the same token, the exemption conferred by section 2776 is limited by its terms to a
"person who has obtained a vested right to conduct surface mining operations." In other
words,
" ... the exemption extends only to those persons whose reliance upon existing
permits or authorization induced them to initiate substantial performance of
their projects and to incur substantial liabilities in connection therewith." Urban
Renewal Agency v. California Coastal Zone Com., supra, 15 Cal. 3d 577, 586
(interpreting Pub. Res. Code 27404, an exemption provision substantially
similar to 2776).
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 [**657]
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
Attachment E, p. 15 of 17
EXHIBIT C
189
Page 16
59 Ops. Cal. Atty. Gen. 641
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.
However, once a vested right has been established, it has been declared a property
right, Trans-Oceanic Oil Corp. v. Santa Barbara, 85 Cal. App. 2d 776, 783-88 (1948), and
"its impairment or destruction must comport with constitutional principles." Aries, supra, at
548. "The rule is grounded upon the constitutional principle that property may not be taken
without due process of law." /d. at 543. If a vested right is protected by the same
constitutional principle which protects other property rights, it is only logical to conclude
that the vested right is also a property right. Indeed, it has been referred to as a "vested
property right" in numerous California decisions. See, e.g., O'Hagen v. Board of Zoning
Adjustment, 19 Cal. App. 3d 151, 158 (1971 ); Griffin v. County of Marin, 157 Cal. App. 2d
507,511-13 (1958).
Since a vested right is a property right, the final issue to determine is whether the
vested right is transferable to a successor in interest to the one who acquired it, as are
other property rights, such as a special use permit or a zoning variance. Cohn v. County
Board of Supervisors, 135 Cal. App. 2d 180, 184 (1955). The answer depends on the
circumstances of each individual case.
In Harris v. Alcoholic Bev. etc. Appeals Bd., 61 Cal. 2d 305 (1964), the Supreme Court
held that the right to a dual wholesaler's and importer's liquor license under Business and
Professions Code section 23774, as an exemption from an otherwise general prohibition
against such dual licenses, was not transferable to a successor in interest to a liquor
business. The business license involved in that case was not equated with constitutionally
protected rights in real property, although it could be classed as a "fundamental vested
right" for purposes of determining the scope of judicial review of an administrative agency
decision to revoke such a license, under Bixbyv. Pierno, 4 Cal. 3d 130 (1971), and
Strumsky v. San Diego County Employees Retirement Assn., 11 Cal. 3d 28 (1974).
Nevertheless, the Harris court held that the exemption recognizing the right to the dual
license was not a transferable exemption for a number of reasons; i.e., such a dual license
was contrary to public policy and undesirable, it was allowed by the Legislature solely
because the lawmakers "deemed it inequitable to conform certain established business
arrangements" to the statute's prohibition against such a license, and the dual license in
question had served its purpose prior to the attempted transfer. Harris v. Alcoholic Bev.
etc. Appeals Bd., supra, 61 Cal. 2d, 309-10. Moreover, there was also a suggestion of
"knowledgeable planning of prospective arrangements with intent to exploit the exception."
/d. Under these circumstances, the Supreme Court refused [**658] to allow the
exemption in favor of the right to a dual liquor license to be transferred, in spite of the fact
that an ordinary liquor license was transferable. /d. n8
n8 The Harris case was cited by the Supreme Court in People ex rei. S.F. Bay
etc. Com. v. Town of Emeryville, supra, 69 Cal. 2d 548, for the proposition that
frustration of an initial, exempt construction project does not justify allowing
successor, substantially modified projects to enjoy the exemption of the original
project. The Emeryville case said nothing about whether or not an exemption to
complete a project can be transferred to the successor in interest to the orig ina I
Attachment E, p. 16 of 17
EXHIBIT C
190
Page 17
59 Ops. Cal. Atty. Gen. 641
exemption holder where the successor only wishes to complete the project as
originally planned and exempted.
There is nothing in the County Counsel's question, nor in the Mining Act itself which
suggests that the circumstances peculiar to the Harris case exist here. There was no
constitutionally protected real property right involved there, as there is here, there are no
facts suggested here which would imply an attempt to exploit the exemption, as in Harris,
and a mining operation entitled to a section 2776 exemption would not be likely to have
"served its purpose" until the operations defined or described by the exemption had been
completed, regardless of who owns or operates the mine. Moreover, the vested right
recognized by section 2776 is not as inimical to the general statutory scheme from which it
provides an exemption as was the dual licensing exemption in Harris. One of the main
purposes of the Mining Act is to require mined lands to be reclaimed (section 2712), and
section 2776 does not exempt a mine operator from the Act's reclamation requirements.
It is our conclusion that, although a vested right is created by equitable estoppel and
may only be acquired in the first instance by the person who relied on a governmental
approval and is therefore in a position to estop the government from revoking the approval,
once the vested right is established it is a property right subject to constitutional protection.
Whether the vested right may be transferred to successors in interest to the person who
acquired it depends on the circumstances of each individual case. Where such a transfer
would be contrary to public policy and inimical to the basic purposes of the statute from
which the vested right provides an exemption, as in the Harris case, supra, the vested right
would not be transferable. In the absence of circumstances such as those in Harris, the
vested right would be transferable, just as any other right in real property. Therefore, a
person who has acquired a vested right to conduct surface mining operations under
section 2776 without first obtaining a permit under section 2770 may transfer that right to a
successor operator, unless precluded by overriding circumstances such as those in Harris.
The scope of the right so transferred will of course be strictly limited to the scope of the
originally acquired right. See section VI of this opinion, supra. Any expansion of operations
by the successor beyond the scope of the original vested right requires a section 2770
permit. See section 2776, first sentence; and Emeryville, supra.
Attachment E, p. 17 of 17
EXHIBIT C
191
EXECUTIVE OFFICER
SPECIAL REPRESENTATIVE
STATE MINING AND GEOLOGY BOARD
DUTY STATEMENT
[Adopted July 23, 2004]
BACKGROUND AND GENERAL QUALIFICATIONS
The Executive Officer/Special Representative is the constitutionally exempt (non-civil
service) employee who serves at the pleasure of the Board to administer various sections
of the State's Public Resources Code and the California Code of Regulations under the
Seismic Hazards Mapping Act, the Alquist-Priolo Earthquake Fault Zone Mapping Act, and
the Surface Mining and Reclamation Act, and is the Board's Special Representative to the
Administration and the Legislature. Public Resources Code Section 670 authorizes the
Board to appoint the Executive Officer. The State Mining and Geology Board is an
autonomous body within the Department of Conservation that is responsible for giving
direction and guidance to the Director, the State Geologist, and to the Division of Mines and
Geology (California Geological Survey), on matters pertaining to the State's geology,
seismology, and mineral resources, and has statutory authority to establish policy and set
technical standards for programs in seismic hazards mapping, geohazards and landslides
mapping, active surface fault mapping, and for the reclamation of mined lands.
The Executive Officer/Special Representative will have a background and experience in
geology, seismology, or civil engineering, and have a working understanding of general
business practices, accounting and budgeting, legislative and regulatory processes, and
the management of professional, technical, and clerical staff. Additionally, the Executive
Officer should possess excellent written and oral communicative skills necessary in dealing
with elected and appointed government officials, members of various professions, and the
general public.
GENERAL DUTIES
1. Maintain and manage the official Board headquarters office in Sacramento.
(a) Keep and maintain the official records, minutes, files, orders, rules, directives,
regulations, and other documents of the board.
(b) Prepare and monitor the Board's budget, accounts, and billings.
EXHIBIT C
192
Executive Officer Duty Statement
State Mining and Geology Board
Page 2 of 5
(c) Prepare written correspondence in response to public and government agency
inquiries regarding the Board's policies and actions.
(d) Manage the Board's office staff, develop and assign staff responsibilities, control
workloads and manage work schedules, conduct personnel performance
reviews, promote staff training and education, and recommend job
advancements and promotions.
2. Communicate the Board's policies to the public and affected agencies and organizations,
and ensure that those policies are administered and enforced.
3. Plan, organize, and implement the Board's research and public information programs as
required by law (PRC 675, 676); in cooperation with the Board, the Director, and
the State Geologist, prepare announcements and publicity regarding the activities of
the Board.
4. Review with the Director the Department's program plans for preparation of the annual
budget; arrange for review of such program plans with the Board, together with the
Director, if feasible, and before the budget is prepared for transmittal to the
Secretary of Resources Office for consideration.
5. Develop and maintain for the use of the members of the Board, concise, but
comprehensive material outlining the duties and responsibilities of the Board, along
with background and situation material as may assist the members in keeping
current with the Board's role.
6. Assist the Board in gathering, reviewing, and compiling information to provide the
essential factual data for the development of general policies for the State's earth
science programs to be administered by the Department (PRC 672).
7. Assist the Chairperson of the Board in all actions on behalf of the Board.
8. As the Board's Special Representative, work closely with the Director of the Department
of Conservation, the State Geologist, the Secretary of Resources and State
Legislators, to ensure the fullest possible communication between these officers and
the Board on all matters of mutual concern.
9. Review with the Director and the State Geologist the Department's program operations
for compliance with statutory authority, policy, and budget.
10. Consult with the Attorney General's Office as required to provide the Board with review
and interpretation of laws, rules, and regulations.
11. Represent the Board in pertinent sessions and conferences with state, local, and
Federal agencies, and the public, and testify for the Board in Court proceedings.
-" '' F n 2 nf S
EXHIBIT C
193
Executive Officer Duty Statement
State Mining and Geology Board
Page 3 of 5
Proactively present the Board's policies and describe its activities to public and
private groups, and seek stakeholder input on Board initiatives.
12. Keep informed of both State and Congressional legislation pertaining to the Board's
concerns, and maintain regular communications with the Board on proposals and
issues. Maintain contact with the Department's legislative office for appropriate
exchange of information relative to proposed new legislation and interim studies of
concern to the Board.
BOARD AND COMMITTEE MEETINGS
13. Schedule and coordinate Board and Committee meetings and special hearings with
respect to dates, locations, times, overnight accommodations, and travel
arrangements. Ensure that the public and affected parties are timely notified of
Board and Committee hearings.
14. Prepare, or arrange for preparation, of information pertinent to the items on the Board's
agenda in advance of meetings and hearings; transmit to members pertinent
material and analyses of all items to come before the Board, at such time prior to
meetings as the Board may direct
15. Prepare appropriate drafts of reports, resolutions, orders, and directives of the Board,
and upon adoption of resolutions, orders, and directives, properly file them as
required and publicize them as necessary.
16. In consultation with the Board Chairperson, prepare the meeting and hearing agendas
for the Board and its committees.
17. Advise the Board members with regard to compliance with the Bagley-Keene Open
Meetings Act (PRC 11120 et seq.).
SPECIAL REPORTS
18. Draft the Board's annual recommendations to the Governor and the Legislature
regarding needed research projects (PRC 674). Provide liaison with university
groups, government agencies, and other sources to gather information pertinent to
the development of research recommendations.
19. Draft the Board's annual report to the Governor and the Legislature on actions taken
pursuant to the Surface Mining and Reclamation Act of 1975 (PRC 2717), as well
as legislative recommendations to more completely carry out the purposes of the
Act
nt F n nf 'i
EXHIBIT C
194
Executive Officer Duty Statement
State Mining and Geology Board
Page 4 of5
ALQUIST-PRIOLO EARTHQUAKE FAULT ZONING ACT
20. Implementation of the Act:
(a) Assist the Board in developing and revising policies and criteria (regulations) for
use by cities and counties to implement the Act (PRC 2621.5). Provide
pertinent information from the Seismic Safety Commission to the Board for
policy development.
(b) Prepare background information and reports to assist the Board in considering
fault map zoning appeals by cities and counties (PRC 673).
(c) Schedule the Board for public hearings on Preliminary Fault Zone Maps prepared
by the State Geologist, and transmit public comments received by the Board
to the State Geologist (PRC 2622).
(d) Provide notice to the Board for Geologists and Geophysicists of the issuance of
Preliminary Fault Zone Maps and request technical comments from registered
professionals (CCR 3602).
SEISMIC HAZARDS MAPPING ACT
21. Implementation of the Act:
(a) Assist the Board in developing and revising policies and criteria (regulations) for
use by cities, counties, and state agencies in implementing the Act, which
shall include criteria for approval of projects and mitigation measures, the
contents of geotechnical reports and their evaluation by the lead agency, and
guidelines for evaluating seismic hazards and recommending mitigation
measures (PRC 2695).
(b) Schedule the Board for public hearings on Preliminary Seismic Hazard Maps
prepared by the State Geologist, and transmit public comments received by
the Board to the State Geologist (PRC 2696).
SURFACE MINING AND RECLAMATION ACT
22. Implementation of the Act:
(a) Assist the Board in developing and revising state policy (regulations) for the use
of cities, counties, and surface mining operators for the reclamation of mined
lands (PRC 2655).
t:. F n 4 nf !1
EXHIBIT C
195
Executive Officer Duty Statement
State Mining and Geology Board
Page 5 of 5
(b) Review and assess lead agency SMARA ordinances for accordance with the Act,
and make recommendations to the Board for state certification of the
ordinances (PRC 2774.3, 2774.5).
(c) Review and provide recommendations for the Board's approval of reclamation
plans and financial assurances in situations involving lead agencies without
certified ordinances, or for those lead agencies where the Board has
assumed lead agency SMARA powers (PRC 2774.4, 2774.5).
(d) Review and analyze complaints regarding lead agency administration and
enforcement of the Act, and make recommendations to the Board for actions
to assume lead agency SMARA authority (PRC 2774.4).
(e) Administer the provisions of the Act and state policy with regard to surface
mining operations, and implement enforcement actions authorized by the
Board, when the Board is the lead agency (PRC 2774.1).
(f) Review and comment on proposed mineral resource management policies,
relevant to classified or designated mineral areas, prior to their adoption or
revision by lead agencies (PRC 2762).
(g) Assist the Board in the development of procedures and guidelines for conducting
mineral land designation pursuant to SMARA (PRC 2761).
(h) Review and accept petitions for classification and designation for presentation to
the Board (PRC 2761 ).
(i) Prepare and gather background information and reports on appeals and petitions
filed with the Board concerning Director's Orders to Comply (PRC 2774.1,
2774.2), Board Orders to Comply (PRC 2774.1, 2774.2), Mineral
Designation Permits (PRC 2775), Low Gross Fee Exemptions (CCR
3699), Exemptions from SMARA (PRC 2714) and, Denial of Reclamation
Plan or Financial Assurance (PRC 2770).
G) Prepare and recommend revisions to the Board's Financial Assurance Guidelines
as necessary (PRC 2773.1)
A F n 5 of 5
EXHIBIT C
196
Public Resources Code- PRC
DIVISION 2. GEOLOGY, MINES AND MINING [2001- 2815]
(Heading of Division 2 amended by Stats. 1965, Ch. 1143.)
CHAPTER 9. Surface Mining and Reclamation Act of 1975 [2710- 2796.5]
(Chapter 9 added by Stats. 1975, Ch. 1131.)
ARTICLE 4. State Policy for the Reclamation of Mined Lands [2755- 2764]
(Article 4 added by Stats. 1975, Ch. 1131.)
2755.
The board shall adopt regulations that establish state policy for the reclamation of
mined lands in accordance with Article 1 (commencing with Section 2710) of this
chapter and pursuant to Chapter 3.5 (commencing with Section 11340) of Part 1
of Division 3 of Title 2 of the Government Code.
(Amended by Stats. 2004, Ch. 183, Sec. 285. Effective January 1, 2005.)
2756.
State policy shall apply to the conduct of surface mining operations and shall
include, but shall not be limited to, measures to be employed by lead agencies in
specifying grading, backfilling, resoiling, revegetation, soil compaction, and other
reclamation requirements, and for soil erosion control, water quality and
watershed control, waste disposal, and flood control.
(Amended by Stats. 1980, Ch. 800, Sec. 3. Effective July 28, 1980.)
2757.
The state policy adopted by the board shall be based upon a study of the factors
that significantly affect the present and future condition of mined lands, and shall
be used as standards by lead agencies in preparing specific and general plans,
including the conservation and land use elements of the general plan and zoning
ordinances. The state policy shall not include aspects of regulating surface
mining operations which are solely of local concern, and not of statewide or
regional concern, as determined by the board, such as, but not limited to, hours
of operation, noise, dust, fencing, and purely aesthetic considerations.
(Amended by Stats. 1980, Ch. 800, Sec. 4. Effective July 28, 1980.)
2758.
Such policy shall include objectives and criteria for all of the following:
(a) Determining the lead agency pursuant to the provisions of Section 2771.
(b) The orderly evaluation of reclamation plans.
Attachment G, p. 1 of 2
EXHIBIT C
197
(c) Determining the circumstances, if any, under which the approval of a
proposed surface mining operation by a lead agency need not be conditioned on
a guarantee assuring reclamation of the mined lands.
(Added byStats.1975, Ch.1131.)
2759.
The state policy shall be continuously reviewed and may be revised. During the
formulation or revision of the policy, the board shall consult with, and carefully
evaluate the recommendations of, the director, any district technical advisory
committees, concerned federal, state, and local agencies, educational
institutions, civic and public interest organizations, and private organizations and
individuals.
(Amended by Stats. 1992, Ch. 1077, Sec. 5. Effective January 1, 1993.)
2760.
The board shall not adopt or revise the state policy, unless a public hearing is first
held respecting its adoption or revision. At least 30 days prior to the hearing, the
board shall give notice of the hearing by publication pursuant to Section 6061 of
the Government Code.
(Amended by Stats. 1981, Ch. 714, Sec. 344.)
Attachment G, p. 2 of 2
EXHIBIT D
198
EXHIBIT E
199
RECLAMATION PLAN
LAPIS PLANT
City of Marina
County of Monterey
= RMC LONESTAR =
P.O. Box 5252
Pleasanton, CA 94566
( 415) 426-8787
Cl.'!.'Y OF MARINA
OCT 1 2 1989
PlANNING DEl"!'.
August 1989
Revised Oct. 11, 1989
{Items 22, 27, & 29)
EXHIBIT E
200
SECTION
I.
II.
III.
IV.
TABLE OF CONTENTS
Introduction
Model Reclamation Plan
Discussion of Additional Requirements
of the City of Marina Ordinance 82-14
Appendix
- USGS Topographic Map
- Statement of Acknowledgement of Responsibility
- City of Marina Resolution 82-14
- City of Marina Resolution 84-48
- Reclamation Plan Topographic Map
- Aerial Photograph/ Topographic Compilation
- LSA Biotic Report (Seperate Cover)
- TRA Biotic Report (Seperate Cover)
EXHIBIT E
201
I. INTRODUCTION
RMC Lonestar owns and operates a sand-mining and processing plant in the
City of Marina, County of Monterey, California. The plant has been in
operation since 1906. The State Surface Mining and Reclamation Act of 1975
(SMARA), Section 2776, provides as follows:
"A person who has obtained a vested right to conduct swface mining
operations prior to January 1, 1976, shall submit to the lead agency and
receive, within a reasonable period of time, approval of a reclamation plan
for operations to be conducted after January 1, 1976, unless a reclamation
plan was approved by the lead agency prior to January 1, 1976, and the
person submitting the plan has accepted responsibility for reclaiming the
mined lands in accordance with the reclamation plan. Nothing in this
chapter shall be construed as requiring the filing of a reclamation plan for,
or the reclamation of, mined lands on which suiface mining operations were
conducted prior to January 1, 1976."
As a practical approach, this reclamation plan is for the portion of the site which
is currently being mined. This area includes sites mined before and after the
January 1, 1976 cutoff date. Other lands to the north which are not currently
being mined, will be addressed in a future reclamation plan.
EXHIBIT E
202
II. MODEL RECLAMATION PLAN
SUGGESTED MODEL RECLAMATION PLAN
As a guide to Counties and Cities for Compliance with
Section 2772, Surface Mining and Reclamation Act of 1975
OWNER, OPERATOR, AND AGENT:
1. Applicant
Name
Address
Telephone
RMC Lonestar Industries, Inc.
P.O. Box 5252
Pleasanton, CA 94566
(415) 426-8787
2. Name (if any) of Mineral Property: LapiS Plant
3. Property Owners, or owners of surface rights (List all owners).
Name
Address
Telephone
Same as Applicant
4. Owners of Mineral rights.
5.
6.
7.
Name
Address
Telephone
Lessee.
Name
Address
Telephone
Operator.
Name
Address
Telephone
Agent of Process.
Name
Address
Telephone
Same as Applicant
Same as Applicant
Same as Applicant
(Person designated by operator as his agent for the service process).
Ralph Mitchell
RMC Lonestar Industries, Inc.
P.O. Box 5252
Pleasanton, CA 94566
(415) 426-8787
EXHIBIT E
203
LOCATION:
8. Brief description, including legal, of the extent of the minded lands (to be) involved by this operation, includ-
ing total acreage.
Portion of Assessor's Parcel No. 23-011-01 as shown on the attached map.
Section(s)--------, Range--------
-----------Meridian.
9. Describe the access route to the operation site.
The Lapis Plant is located on the western end of Lapis Road. Lapis Road is
reached from Del Monte Avenue and passes under Highway 1.
10. Attach Location and Vicinity Map
See attached maps.
DESCRIPTION:
11. Mineral commodity (to be) mined: S i 1 i ca Sand
12. Geologic description, including brief general geologic setting, more detailed geologic description of the mineral
deposit (to be) mined, and principal minerals or rock types present.
The site is a sand deposit adjacent to the Pacific Ocean. Silica sand,
consisting primarily of quartz and feldspar, is mined from the on-shore
deposit. The eolian deposited sand is referred to as Flandrian complex
with older, Pre-Flandrian dunes lying underneath.
13. Brief description of enviromnental setting of the site and the surrounding areas. Describe existing area land
use, soil, vegetation, ground water elevation and surface water characteristics, average annual rainfall and/or
other factors pertaining to enviromnental impacts and their mitigation and reclamation.
Land uses to the south and east include Highway 1, agriculture, sand-mining
and processing and residential. The site has been actively mined since
1906, and the site has been disturbed by off-road vehicles. A regional
sewage outfall line crosses the site to an ocean discharge location.
PROPOSED (EXISTING) SURFACE MINING OPERATION:
14. Proposedstartingdateofoperation Mining is on-going
Estimated Life of Operation 50 years or more.
Duration of First Phase Undefined
EXHIBIT E
204
15. Operation will be (is): Continuous - - - - X ' - - - ~ Seasonal
Developed,
not yet in operation - - - - ~ Temporarily deactivated - - - - ~
Stockpile in Mine -----
16. Operations will be (is):
Under 5,000 tons cu. yds.fyr. ------
5,000 - 50,000 tons cu. yds.fyr. ------
50,000- 250,000 tons cu. yds.fyr.
250,000- 1,000,000 tons cu. yds.fyr. ---"X __ _
Over 1,000,000 tons cu. yds.fyr. ------
17. Total anticipated production
Mineral commodities to be removed-
Waste retained on the site -
Waste disposed off site-
Maximum anticipated depth
tons (cu. yds.) > 5,000,000 yds
tons (cu. yds.)------
tons (cu. yds.)------
18. Mining Method: (Check all applicable)
Open Pit
Single Bench
Quarry:
Hill Top
Multibench
Side Hill
Dragline
Low Level
Shovel
Underground
Gravel bar skimming
Other
Final Grade- 20 NGVDft.
Gravel/Sand Pit
Drill and Blast
Clay Pit
Truck to processing
plant (ToRR)
Borrow Pit
Tailings Pond
Slurry Pump
Waste dump
Rail
Other
Speciality sand is removed from the dredge pond, pumped to the
dewatering tower, and kiln dried.
X
X
19a. If processing of the ores or mineral mined is planned to be conducted at or adjacent to the site, briefly
describe the nature of the processing and explain disposal method of the tailings or waste from processing.
Sand is dried, screened and blended at a processing plant on the site. No
tailings are generated. Small quantities of waste from washing or from air
pollution control equipment are stockpiled and sold.
19b. Estimate quantity (gallons per day) and quality of water required by the proposed operation, specifying pro-
posed sources of this water, of method of its conveyance to this property and the quantity and quality and
method of disposal of used and/or surplus water.
Sand is washed with water from a well on-site. Waste water is discharged
to a percolation pit on-site. Average daily use is approximately 504,000
gallons per day.
EXHIBIT E
205
20. If the nature of the deposit and the mining method used will permit, describe and show the steps or phases of
the mining operation that allow concurrent reclamation and include a proposed time schedule for such concur-
rent activities.
This reclamation plan pertains to the current m1n1ng area which is continu-
ously involved in mining. Concurrent reclamation will not be possible until
a sufficient area is brought to grade to provide for a second land use.
21. Attach a map of the mined land and/or suitable aerial photograph showing:
(a) Boundaries and topographic details of the site;
(h) Location of all streams, roads, railroads, water wells, and utility facilities within 500 feet of the site;
(c) Location of all currently proposed access roads to be constructed in conducting the surface mining
operation(s);
(d) Location of areas (to be) mined, and of waste dumps and tailings ponds.
(e) By use of overlay symbol or color, depiction of separate mining phases if applicable. (See Item 20).
(f) The source of map base, orientation (North arrow), and scale (e.g., 1"=500', etc.) of the map.
RECLAMATION PLAN:
22. Indicate on an overlay of map of Item 21, or by color or symbol on map those areas to be covered by recla-
mation plan.
Acreage -220
23. Describe the ultimate physical condition of the site and specify proposed use(s), or potential uses, of the
mined lands as reclaimed.
After sufficient sand m1n1ng, the parcel will be available for other coastal
dependent or visitor serving uses as allowed by the Marina Coastal Zone
Land Use Plan. Most of the site will have gentle slope to the ocean at
elevations of +20' to +25'. Dune ridges will remain at lateral boundaries.
24. Describe relationship of the interim uses other than mining and the ultimate physical condition to:
(a) Zoning regulations. Marina Local Coastal Plan,
Coastal Conservation and Development/
Coastal Development Permit Combining District
(h) General plan and plan elements. Consistent with above.
25. Provide evidence that all owners of a possessory interest the land have been notified of the proposed use(s) or
potential uses identified in Item 22. (Attach copy of notarized statement of acknowledgement, etc.)
Statement of acknowledgement is attached in Appendix.
26. Describe soil conditions and proposed soil salvage plan.
Parcel entirely overlies sand deposits, no topsoil exists.
EXHIBIT E
206
27. Describe the methods, their sequence and timing, to be used in bringing the reclamation of the land to its end
state. Indicate on map (Item 21-22) or on diagrams as necessary. Include discussion of the pertinent items
listed below.
(a) Backfilling and grading.
(b) Stabilization of slopes.
(c) Stabilization of permanent waste dumps, tailings, etc.
(d) Rehabilitation of pre-mining drainage.
(e) Removal, disposal, or utilization of residual equipment, structures, refuse, etc.
(f) Control of contaminants, especially with regard to surface runoff and ground water.
(g) Treatment of streambeds and stream banks to control erosion and sedimentation.
(h) removal or minimization of residual hazards.
(i) Resoiling, revegetation with evidence that selected plants can survive given the site's topography,
soil and climate.
See attached topography map.
At the conclusion of mining and in conjunction with the development of the
permitted secondary land use, a detailed grading plan will be developed to
establish the final contour of the reclaimed lands. A revegetation plan
will be developed by a qualified biologist. Slopes will be stabilized to
prevent erosion and blowouts. All residual equipment, structures, refuse,
etc. from the operation will be removed from the site. There are no known
contaminant that will affect surface runoff and ground water. Surface water
run-off will be treated in a manner so as to prevent erosion.
28. If applicant has selected a short term phasing of his reclamation, describe in detail the specific reclamation to
be accomplished during first phase.
No short term phasing will occur.
29. Describe how reclamation of this site in this manner may affect future mining at this site and in the surround-
ing area.
Reclamation of the site will be consistent with potential second uses of
the site. The selected second use will determine how future mining at this
site may be affected. This reclamation plan is for the current mining area
and does not address the sand deposits to the north.
Future mining is not anticipated to the south and east; future mining to
the north will not be affected by the implementation of this plan.
EXHIBIT E
207
DISCUSSION OF REQUIREMENTS OF MARINA ORDINANCE 82-14
The City of Marina's Ordinance 82-14 became effective on December 17, 1982.
The Ordinance includes an Exhibit "D" which is "An Ordinance Relating to
Surface Mining and Reclamation Standards and Requiring Mining Operators
Within The City of Marina to Prepare and Execute Reclamation Plans." Section
4.5 of the ordinance defines certain Reclamation Plan Requirements. Most of
these requirements are addressed in the preceding "Suggested Model Reclama-
tion Plan" prepared by the California Division of Mines & Geology. Additional
requirements are addressed in the following material.
Section 7 of the ordinance provides that Reclamation Plans are public records,
except for information identified as proprietary by the City. Some of the follow-
ing information is already a part of the public record as it pertains to a neigh-
boring sand-mining operation.
Ordinance Sections 4.5e and 4.5h (3) require the identification of a line indicating
the tsunami run-up line and a description of the manner in which the tsunami
run-up zone will be preserved to protect the public safety of the community This
issue was addressed in a report titled "Tsunami Run-Up and Coast Erosion
Elements of the Surface Mining and Reclamation Ordinance Relating to Surf
Zone Sand Mining in the City of Marina," which was prepared for a neighboring
sand-mining operation by Dr. Warren C. Thompson, Consultant in Oceanogra-
phy and Registered Geologist No. 2722 and is dated August 28, 1984. This report
has been submitted to and has been approved by the City of Marina and is a
matter of public record. The report states that the U.S. Army Corps of Engineers
has determined a predicted 100-year tsunami run-up for the City of Marina coast
of 5.9 feet above the standard surveying datum NGVD (National Geodetic Ver-
tical Datum). The predicted 500 year run-up is 11.6 feet above NGVD. The
100-year run-up line is shown on the map in the Appendix. The report states that
from observations of the major tsunamis of 1960 and 1964 in Monterey Bay, a
large tsunami may be expected to have the appearance of a quiet tide-like rise
and fall of the water level oscillations lasting for several hours. The report states
that the combination of low run-up, tide-like character, and rare occurrence of
tsunami should require no special measures to protect public safety on any part
of Marina's beach.
With regard to coastal erosion, the report states that the southern sector of
Monterey Bay has experienced landward erosion of the coastal bluff over the past
approximately 15,000 years and that the long-term erosion rate in Marina has
been determined by Cleary Consultants, Inc. to average 2.2 feet per year for the
45-year period from October 1937 to February, 1983. The report states that the
question of whether surf-zone sand mining in Marina is contributing significantly
to the permanent coast erosion has not been resolved. An opinion is offered that
natural erosion remains the dominant factor on the Marina coast today, and that
sand-mining from the surf and beach represents a secondary contribution and the
fractional contribution made by commercial mining would appear to be low.