Hardesty v. State Mining & Geology Bd.

• Decision Date: 17 April 2017
• Docket Number: C079617
• Citation: 219 Cal.Rptr.3d 28
• Court: California Court of Appeals Court of Appeals
• Parties: Joe HARDESTY et al., Plaintiffs and Appellants, v. STATE MINING AND GEOLOGY BOARD, Defendant and Respondent.

219 Cal.Rptr.3d 28

Joe HARDESTY et al., Plaintiffs and Appellants,

v.STATE MINING AND GEOLOGY BOARD, Defendant and Respondent.

C079617

Court of Appeal, Third District, California.

Filed April 17, 2017

Rehearing Denied May 16, 2017

As Modified May 31, 2017

Certified for Partial Publication.^*

Diepenbrock Elkin Gleason LLP and Jennifer L. Dauer, Sacramento, for Plaintiffs and Appellants.

Kamala D. Harris, Attorney General, David Chaney, Chief Assistant Attorney General, John Saurenman, Senior Assistant Attorney General, Christiana Tiedemann, Deputy Attorney General, David G. Alderson and Tara L. Mueller, Deputy Attorneys General, for Defendant and Respondent.

Duarte, J.

In this suit under the Surface Mining and Reclamation Act of 1975 (SMARA) (Pub. Resources Code § 2710 et. seq. ),¹ plaintiffs Joe and Yvette Hardesty (collectively, Hardesty), attack findings by the State Mining and Geology Board (Board). The Board's disputed findings conclude there are no vested rights to surface mine at the Big Cut Mine in El Dorado County (County, not a party herein). The findings in effect deny Hardesty a "grandfather" exemption from the need to obtain a County mining permit. (See § 2776, subd. (a).) The trial court denied Hardesty's mandamus petition, and Hardesty timely appealed from the ensuing judgment.

On appeal, Hardesty raises both substantive and procedural claims.

Substantively, in three somewhat interconnected claims, Hardesty contends the Board and the trial court misunderstood the legal force of his 19th century federal mining patents. He asserts they establish a vested right to surface mine after the passage of SMARA without the need to prove he was surface mining on SMARA's operative date of January 1, 1976. He argues that the Board and trial court misapplied the law of nonconforming uses in finding Hardesty had no vested right and separately misapplied the law in finding that his predecessors abandoned any right to mine. These contentions turn on legal disputes about the SMARA grandfather clause and the force of federal mining patents.

As we will explain, the facts , viewed in favor of the Board's and trial court's decision, undermine Hardesty's claims. A federal mining patent—a deed perfected after working a mining claim—has no effect on the application of state regulation of mining. This point was made emphatically in a recent California Supreme Court case, People v. Rinehart (2016) 1 Cal.5th 652, 206 Cal.Rptr.3d 571, 377 P.3d 818 (Rinehart ), about which we solicited supplemental briefing. Simply put, the fact that mines were worked on the property years ago does not necessarily mean any surface or other mining existed when SMARA took effect, such that any right to surface mine was grandfathered.

Procedurally, Hardesty alleges the Board's findings do not "bridge the gap" between the raw evidence and the administrative findings. Hardesty also challenges the fairness of the administrative process itself, alleging that purported ex parte communications by the Board's executive director, Stephen Testa, tainted the proceedings. However, we agree with the trial court's conclusions that, on this record, neither of these procedural claims proves persuasive.

Accordingly, we shall affirm the judgment denying the mandamus petition.

BACKGROUND

Preliminary Observations

We first note that Hardesty's briefing consistently draws evidentiary inferences in the light most favorable to himself, contrary to the appropriate standard of review, which requires us to draw inferences in favor of the judgment. (See Fukuda v. City of Angels (1999) 20 Cal.4th 805, 824, 85 Cal.Rptr.2d 696, 977 P.2d 693 ["Even when...the trial court is required to review an administrative decision under the independent judgment standard of review, the standard of review on appeal...is the substantial evidence test"].) "The reviewing court, like the trial court, may not reweigh the evidence, and is 'bound to consider the facts in the light most favorable to the Board, giving it every reasonable inference and resolving all conflicts in its favor.' " ( Jaramillo v. State Bd. for Geologists & Geophysicists (2006) 136 Cal.App.4th 880, 889, 39 Cal.Rptr.3d 170.) Hardesty also presumes that any evidence that was not directly contradicted—including expert evidence—must be accepted as true, contrary to applicable standards. (See Hicks v. Reis (1943) 21 Cal.2d 654, 659-660, 134 P.2d 788 ["Provided the trier of the facts does not act arbitrarily, he may reject in toto the testimony of a witness, even though the witness is uncontradicted"]; Foreman & Clark Corp. v. Fallon (1971) 3 Cal.3d 875, 890, 92 Cal.Rptr. 162, 479 P.2d 362 [rule applies to expert witnesses] (Foreman & Clark ).)

Hardesty's contentions are unnecessarily muddled by his persistent refusal to acknowledge the facts supporting the Board's and the trial court's conclusions. "[Hardesty] has not waived the legal issues [he] raises. But in addressing [his] issues we will not be drawn onto inaccurate factual ground." (Western Aggregates, Inc. v. County of Yuba (2002) 101 Cal.App.4th 278, 291, 130 Cal.Rptr.2d 436 (Western Aggregates ).) Because Hardesty does not portray the evidence fairly, any intended factual disputes are forfeited.² See Foreman & Clark, supra, 3 Cal.3d at p. 881, 92 Cal.Rptr. 162, 479 P.2d 362; Western Aggregates, supra, 101 Cal.App.4th at pp. 290-291, 130 Cal.Rptr.2d 436

In 2009, Hardesty filed a Request for Determination (RFD) of his vested rights—later augmented by a 2010 supplement—outlining his legal and factual positions. The RFD includes a declaration of counsel that purports to affirm the truth of the facts contained in hundreds of pages of attachments. The attachments include an unpublished decision of this court in a tangentially related case, Tankersley v. State Mining & Geology Bd . (Jan. 31, 2006, C049372) 2006 WL 225528, 2006 Cal.App.Unpub.Lexis 835 (nonpub. opn.) (Tankersley ), and extracts of private and apparently unsworn interviews of witnesses by Hardesty's counsel.³ Hardesty also presented extracts of depositions taken in separate litigation between a non-party herein and his predecessors (Legacy Land Co. v. Donovan , El Dorado Super. Ct. No. PC20020116(Legacy Land )), with no indication that the opposing side in that case had the same motivation to cross-examine as would an opponent of Hardesty's RFD. Some of these weaknesses in Hardesty's evidentiary submissions were pointed out at the Board hearing.

At the hearing itself, Hardesty bore the burden of proof. (Cal. Code Regs., tit. 14, § 3950.)⁴ A Board regulation provides that "[r]elevant evidence in a proceeding for determination of a claim of vested rights shall be written or oral evidentiary statements or material demonstrating or delimiting the existence, nature and scope of the claimed vested right[s]." (Regs., § 3963, italics added.) The Board evidently interprets this regulation to mean that "[t]estimony and comments presented at hearings need not conform to the technical rules of evidence provided that the testimony and comments are reasonably relevant to the issues before the [Board]." But the fact the Board may accept as true "material" which would not qualify as evidence in a court of law does not mean it was compelled to accept as true all material contained in Hardesty's documents. Instead, the flaws we have noted above, and others, gave the Board ample, rational grounds to reject much of Hardesty's evidence. (SeeHicks v. Reis , supra , 21 Cal.2d at pp. 659-660, 134 P.2d 788.) Further, the Board also considered contrary evidence, principally contained in detailed written proposed findings drafted by Testa. These findings were based on Testa's investigation, as well as statements by members of the public at the hearing—statements not mentioned in Hardesty's briefs. Thus to the (great) extent that Hardesty's briefing is based on the implicit view that the Board and trial court were somehow compelled to accept his evidentiary submissions as true, the foundation of his briefing is undermined.

On the other hand, facts asserted by Hardesty in the trial court or on appeal may be deemed as admissions, and we may also accept as true facts agreed by the parties in their briefing on appeal. (SeeFremont Comp. Ins. Co. v. Sierra Pine (2004) 121 Cal.App.4th 389, 394, 17 Cal.Rptr.3d 80 ;County of El Dorado v. Misura (1995) 33 Cal.App.4th 73, 77, 38 Cal.Rptr.2d 908.)

We make these observations at the outset, to explain our upcoming rejection of Hardesty's many factual assertions that are supported only by references to material that the Board and trial court were free to find was either inaccurate or simply unpersuasive as to the particular subject addressed.

The Basic Facts and Findings

Hardesty owns about 150 acres near Placerville, now known as the Big Cut Mine, but once known—if perhaps only in part—as the Landecker mine. For purposes of appeal, we accept that his property was formed from 19th century federal mining patents.

The land was mined for gold until the 1940's. During World War II, gold mining was restricted by the federal government to shift mining resources to minerals necessary for military purposes. (SeeUnited States v. Central Eureka Mining Co. (1958) 357 U.S. 155, 157-161, 166-169, 78 S.Ct. 1097, 1098–1101, 1103–1105, 2 L.Ed.2d 1228, 1230-1232.) A property history contained in Hardesty's RFD supplement concedes "There are no records presently available...to show what kind of mining business [Stanley Triplett, the owner from 1921 to 1988] conducted on the property after the war." The trial court found that through the 1970's, the property "was essentially 'dormant.' At most, there was sporadic, limited mining involving only a very small portion of the property during this period, and there is virtually no evidence that those mining activities 'continued' to exist at the time SMARA was enacted [effective January 1, 1976]." However, Hardesty's RFD sought to establish a vested right to mine the property for gold, sand, and...