Riverside County Supervisors Postpone Decision In Robertson’s Ready Mix Vested Rights Determination

After more than three hours of presentations and public comment, the Riverside County Board of Supervisors last week postponed making a decision on whether Robertson’s Ready Mix has a vested right to mine approximately 657 acres of land near the city of Corona.

“Robertson’s Ready Mix, as the applicant, has the burden of proving they have a vested right, and the nature and the scope of that vested right, by a preponderance of the evidence,” Minh Tran, county counsel, said during the May 2 hearing. “That is, it must prove that it’s more likely than not that they have that right.”

The property in question is adjacent to the approximately 135 acres that the company already has a vested right to mine and, if approved, would bring the total amount of vested property to approximately 792 acres.

Kerry Shapiro, attorney for Robertson’s Ready Mix, said the supervisors’ decision ultimately hinged on two questions. First, was there an intent to mine the entire 792 acres prior to the Jan. 31, 1949, date of vesting? Secondly, if there was an intent, did the property owners abandon that vested mining right in the intervening years?

Shapiro argued that supervisors would need to consider all aspects of a mining operation, all types of mineral products, all manners of mining and activities related to mining as well as the intent to mine land, even if that land had not yet been mined ahead of the vesting date, in order to answer the first question.

Prior to the vesting date, Shapiro said then-owner Leilamae Harlow, who acquired the property in 1938, worked with the Army Corps of Engineers to determine how much of the land could be mined for the type of rock the agency needed for the flood control projects it was undertaking at the time.

“She’s doing reports with the Army Corps of Engineers about valuable rock and determining that the commodity probably covered two-thirds of her property in 1938, and you’re saying there was no intent,” he said.

Ten years later, just one year before the vesting date, Shapiro said Harlow had a survey of the entire site prepared.

“You do a survey like this for basically one of two reasons,” he said. “You might want to sell the property, or you want to determine the value of what you have, and where it is and how much of it you have.”

By 1949, Shapiro said there were 24 distinct areas of mining activity across approximately 60% of the site with 15 haul roads placed throughout the property, which he said showed an intent to expand mining into those areas prior to the vesting date.

“The main take home here is that a whole lot of mining occurred on our site and adjacent to it over many years,” he said. “We have evidence that says clay mining started right before vesting, which means it’s part of the operation of Harlow and part of her intent to mine.”

The second question Shapiro addressed was that of abandonment of the vested right, which he argued required not just intent, but a knowing intent to waive a known right, and overt action. The evidence for abandonment of a vested property right, he said, also must be clear and convincing.

“Staff’s evidence cannot leave any room for doubt: no speculation, no inference,” he said. “If there is any plausible scenario that exists for non-abandonment, even if there is another or two or three more scenarios that might give rise to abandonment, as long as there is a plausible scenario for non-abandonment, then there is no abandonment.”

Acts that Shapiro said did not amount to abandonment include seeking permits for non-mining activities, halting production at a mine as long as there is an intent to resume and selling the property.

“Selling vested land does not waive a vested right, because it’s a property right that runs with the land period, end of the story there,” he said.

Shapiro further argued that every single owner of the property in question “understood the only possible use of that site was mining.”

Caroline Monroy, with county counsel, however, disputed Shapiro’s definition of “clear and convincing evidence.”

“Clear and convincing evidence is a high probability,” she said. “It is sufficiently strong to command an unhesitating assent, it’s not 100%.”

She also disputed Shapiro’s requirements for establishing abandonment of the vested rights.

“As far as abandonment, there is no knowledge requirement,” Monroy said. “Abandonment requires, as the California Supreme Court has stated, an intent to abandon as well as an overt act consistent with that intent to abandon. It’s two factors.”

She also argued that applying for permits to change the use of a property does, in fact, show intent to abandon a vested property right.

“California law has previously stated that an application to convert a legal nonconforming bathhouse to a senior center is sufficient to show abandonment,” Monroy said. “In that case, the court said that the facts establish more than a temporary vacancy, this was seven years of vacancy, but rather an intentional decision to abandon the premises and concluded that the prior owner’s application to convert the bathhouse to a senior center and shelter demonstrates an intent to abandon.”

Planning Director John Hildebrand also argued that Robertson’s Ready Mix, in its application, failed to show evidence that property owners intended to expand mining throughout the 792 acres ahead of the vesting date and failed to establish that the operator started “surface mining operations in good faith with a permit or other authorization consistently, continuously and accrued substantial liabilities for working materials necessary for the surface mining operations over time.”

Prior to Harlow acquiring the property, owner E.E. Peacock sold hundreds of small parcels, known as encyclopedia lots, within the property.

“This is a patchwork of existing parcels on the site,” Hildebrand said. “And, to date, there are almost 150 separate property owners that encompass this entire site.”

And though Peacock reserved “oil and mineral rights,” right-of-way and easements for utilities and “all water rights” except for domestic uses, Hildebrand said that does not give the owner of those subsurface rights to conduct surface mining on that land.

“California reservation of mineral rights from a grant deed does not include the right to remove gravel or the surface of the sold property,” Hildebrand said. “Therefore, when the property owner sold hundreds of these parcels, they did not necessarily retain the right to quarry the buyer’s land. This shows that they did not intend to quarry the property later on by the selling of those properties.”

Harlow acquired the land following Peacock’s death and, throughout her ownership, leased a portion of it to a girls school and proposed building a dude ranch, a rest home and a landfill, though none of those proposals ever materialized.

And while “significant” mining activities continued on the property throughout the years following the vesting date, a number of other uses have been proposed for the land, most recently including a number of proposed residential developments.

In May 2005, Cajalco Associates submitted a general plan foundation amendment for the 655 acres it had purchased the year before and restated its plan to develop a “rural-themed gated community with its own private streets and recreational areas,” according to the county.

“Cajalco [Associates] considered mining the area and dismissed it, writing in the General Plan Foundation amendment application, ‘property under consideration for redesignation is not owned or leased by any mining interest and historically has not been used for mining purposes.’” Hildebrand said. “‘Any expansion of mineral extraction operations into the existing buffer property simply would not be allowed.’”

However, in 2007, Cajalco Associates abandoned the project and sold the land to Corona Twin Creeks, which in 2009 proposed a 697-acre “master-planned development” that also failed to come to fruition.

“So there were other intents to utilize portions of the property for other purposes throughout this history,” he said.

Shapiro, during his rebuttal, again argued that other planned uses for a site do not automatically indicate abandonment of a vested right.

“Having other uses on a mining site doesn’t mean you’re waiving or abandoning mining,” Shapiro said. “You have the right to maximize the economic potential of your property. The issue is do those other uses preclude mining, and there’s no allegation or assertion by the staff that what they were doing was going to preclude mining.”

When it came time for public comment, a number of employees for Robertson’s Ready Mix spoke in support of the company generally and the expansion of its vested rights.

“The confirmation of our vested mining rights at the Harlow site is essential to our company’s ability to serve our local communities,” Meindert Zwaagstra said. “It will mean local job opportunities for families and for expanding local development.”

Attorney Leigh Dundas also spoke in support of expanding the company’s vested rights.

“Vested rights, you learn this on the first day of law school, do not ever un-vest unless you can show, not them, by clear and convincing evidence that the property owner clearly intended to either abandon or waive those rights,” she said. “And when 60% of the site in question has been mined for nearly 100 years, let me break it down for you, you can’t show that.”

However, Corona Councilman Wes Speake felt differently, stating that vested rights had not been proven and asking the supervisors to “see the same way.”

“There seems to be this feeling if you vote no, that mining will never be on the site and will never be expanded and even go backwards with the existing site, this is simply not true,” he said. “This is not an all or nothing for operations, however, this is all or nothing for the residents of this area in the city of Corona.”

And speakers from the Pechanga Band of Indians, made clear their concerns about the implications if the supervisors voted in favor of Robertson’s Ready Mix.

“The Tribe is very concerned about the protection of unique and irreplaceable cultural resources such as Payómkawichum sites, cultural resources, sacred sites and ancestral remains that may be impacted by the mining activities,” Tuba Ebru Ozdil, cultural analyst, said. “The Tribe believes that proper and lawful assessment of the treatment of the cultural resources needs to be conducted to preserve and protect ancestral remains and sacred sites likely to be discovered during the course of the further mining activities.”

A vested right would allow Robertson’s Ready Mix to mine without obtaining a surfacing mining permit, which requires the business to go through a series of processes set out by the National Environmental Policy Act (NEPA) and the California Environmental Quality Act (CEQA), including consultation with tribal entities that have an interest in the property.

A vested right would not, however, allow Robertson’s Ready Mix to begin mining without any oversight. Before mining could begin, the company would need to have an approved reclamation plan in place that details how the company would mitigate adverse environmental effects of its mining activities and return the land to a beneficial end use. This part of the process is also subject to NEPA/CEQA and would involve consultation with tribes.

“Most important to our tribe are the direct impacts to ancestral remains, ceremonial rock art, and many sensitive artifacts which define sacred sites,” Paul Macarro, culture coordinator, said. “Vested rights diminish any regular CEQA planning reviews, there is no mitigation possible. Because any and all environmental reviews will not exist, my Tribe urges the denial of this vested rights claim.”

Christine Goeyvaerts, project manager for Robertson’s Ready Mix, said the company was more than willing to work with tribal interests.

“A reclamation plan comes before we disturb the ground, you can’t move one rock until we have that reclamation plan in place, and it takes years to get these approved through the county,” she said. “And one of the things that’s very important to this county, and they’ve made it clear to us is consultation with the tribe, before we were one rock, we will have to go through a reclamation plan, it will have to be approved by the county.”

The sticking point for the Tribe, however, was that a reclamation plan does not necessarily address how mining is performed or what steps will be taken to ensure cultural artifacts will not be disturbed or destroyed during the mining process.

“As to the idea that CEQA compliance in reclamation will be sufficient, we’re afraid that that’s meaningless, because unless there’s avoidance, then what we’re talking about is destruction of the artifacts,” John Nelson, attorney for the Pechanga Band of Indians, said. “And then, you know, basically a monitor [will] watch the destruction of the artifacts and cultural resources, so unless CEQA is done at the frontend, and unless the consultation happens at the frontend, mining is going to occur. 

“Reclamation is about putting it back, reclaiming the land,” he continued. “It’s not about the destruction of the resources that are going to occur through the mining.”

And while the supervisors had questions about why 135 acres of land were vested though the remainder was not requested until now and the finer details of what can be considered when determining abandonment, the sticking point ended up being whether Robertson’s Ready Mix and the Pechanga Band of Indians could come to an agreement.

“I’m looking at two 800 pound gorillas,” Jeffries said. “I’ve known Robertson’s to be a very ethical, community-minded company for years and years and years. I’ve known Pechanga to look out for its cultural resources and the long-term view of protecting Riverside County, making sure that all aspects of their cultural resources are protected, sometimes fenced off, making sure that everything’s done right.

“I have no reason to believe that either one of you are going to be bad actors or bad players,” he continued. “You’ve given us your word that you’re going to do this right, but if you don’t, the consequences will be we’ll never trust you again.”

Jeffries called for a five minute recess to allow representatives for both Robertson’s Ready Mix and the tribe to see if they could come up with an enforceable agreement. However, when the attorneys came back in, it became clear that an agreement had not been reached.

“I think that, you know, the best we’re going to get as far as working collaboratively today with the tribe is to continue the matter, to have a discussion to see if we can to sort of come up with an agreement or an MOU for the full consultation that the tribe is seeking at this time,” Shapiro said.

The supervisors voted 4-0 to continue the item to June 27 to allow the Pechanga Band of Indians and Robertson’s Ready Mix time to see if they could come to an agreement. Supervisor Chuck Washington recused himself from the decision because a company he owns with his wife and children did business with Robertson’s Ready Mix last August.

At that meeting, the supervisors will only hear new information that might aid them in making a determination as to whether Robertson’s Ready Mix has vested rights in the property including whether or not an agreement has been reached between the company and the tribe.

“We will not be taking testimony again on old items,” Jeffries said. “The only testimony that would be made on continuing this hearing would be of new items, newly discovered issues, not rehashing the old stuff.”

A full recording of the meeting can be found here on the county’s website.