Friday, February 8, 2008

Lawsuit? What Lawsuit?

Posted By on Fri, Feb 8, 2008 at 2:14 PM

I'm still waiting to hear from Pima County regarding a lawsuit filed by the county two years ago against the Arizona State Land Department.

A call went out to Pima County Administrator Chuck Huckelberry before the Tucson Weekly went to press this past issue, but the call has remained unanswered. The question: What is the status of the 2-year-old lawsuit filed by Pima County against the Arizona State Land Department regarding California Portland Mining leases? 

It's a simple question, and as far as the land department and California Portland folks are concerned, the parties remain in litigation (at least as of last week). Monday, a rumor surfaced that the county was going to drop the lawsuit. The call to confirm the lawsuit rumor grew more important, yet remained unanswered for the story we ran on a local group's effort to stop the proposed mines. 

Finally, and the day of publication (Feb. 7), the rumor was half confirmed when the Weekly received a copy of a memorandum sent to all Pima County Board of Supervisors by Huckelberry on Wednesday, Feb. 6 (the day after we go to press). I was told the lawsuit will be on the agenda at the board of supervisors' meeting on Tuesday, Feb. 12. It's there, under executive session. We've discussed in previous blogs that the board is legally entitled to discuss legal matters with their attorney in executive session. It would be nice and highly democratic, however, if the board chose to discuss this matter in front of their constituents. It would also be politically helpful if they decided to make their vote public on whether to proceed with the lawsuit or not. In executive session, the board can vote with no one knowing how each board member voted. Could be handy during election season.

Meanwhile, folks from the Empire-Fagan Coalition are shocked by the possibility the county could drop the lawsuit. The coalition is made up of a group of residents who would have to live near the proposed mines. They'd have to deal with the blasting and dust, and the possible contamination of well water and sharing the small roads with the 23-ton mining trucks transporting limestone to crushing facilities.

Besides those little quality of life issues, the coalition is concerned that leaving the state trust land alone and/or selling it to the county for open space would make the land more profitable for the department.

According to coalition president Mike Carson, he and other members plan to be at the Tuesday board meeting, and they plan to pack the room. 

For the Empire-Fagan folks we're talking about something much needed in this day of development vs. open space (with water an ugly issue beneath all of these discussions)--HOPE. Coalition members are starting to feel like they are running out of hope after getting nowhere in their discussions with the Arizona State Land Department.

According to the recent memorandum from Huckelberry's office, the road block on the lawsuit began on Nov. 19, 2007 when the county requested the court set an evidentiary hearing and authorize county expert witnesses to access the mining property and collect evidence. The land department opposed the request, and the court requested the county issue the request in writing. On Dec. 12, the county filed a request for a hearing and motion to authorize its expert witnesses and collect evidence. 

On Jan. 25, 2008, almost two weeks ago, the court denied the county's request. This is odd, considering the same court gave the county permission to move forward with its lawsuit to get the land department to appeal the mining leases. But now it is saying the county cannot collect evidence to support its lawsuit. 

The county's approach was to argue that the leases were not in the best interest of the state trust, because mining would harm waterways and wildlife, protected under federal law. But to prove this, it still needed access to the proposed mining areas to produce evidence. 

"... (F)rom the initiation of this case, the county has sought expert opinions on the relevant issues ...," the memo states. "Without the sufficient evidence, the county is not in a position to proceed with the case, and is required to dismiss it." 

However, the last two pages of the four-page memo offer some crumbs of hope.

California Portland is still waiting for approval of a 404 permit from the US Army Corps of Engineers. Previously, the corps rejected the cement company's first permit application ,because the company failed to provide requested information. The county plans to provide comments to the corps and notify the community regarding a public comment period. California Portland needs a 404 before mining occurs. 

Another crumb, which was discussed in our story, is the possibility that the state could declare Davidson Canyon an Outstanding Waterway. The designation, according to the memo, prevents the state from declaring water quality permits that could degrade this waterway. 

From the county's perspective, any protective measure is moving too slowly. They recommend sending letters to the water quality division to move the process faster (Joan Card, Division Director of the Water Quality Division, ADEQ, 1110 West Washington Street, Phoenix, AZ 85007). 

The other crumbs of hope are part of the age-old debate over changing the state trust land laws. One part of the statute prevents the state from auctioning lands where valuable minerals are located. Changing this part of the law would be one start. Changing other areas of the law are further supported in the memo, such as allowing state land trust property to be used for mitigation purposes when working with development and setting aside open space as outlined in the county's Sonoran Desert Protection Plan. The land department process must also begin to include public comment and put proposed land use application online for review. And finally, look more closely at water and land issues before doling out mineral leases.

All of this has been debated and discussed before. These changes could come too late for those in the Empire Valley.

We've wrestled with this for too long. The initiative process and the state Legislature have both failed to provide state land reform. The county, through its memo, makes its argument to get out of the lawsuit in a nice legal frame, but it needs to stick it out.

The people of Pima County needs someone to continue the fight, at least to dish out a little more hope.

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