Witnesses testify Big Cut Mine operated without permit

By From page A1 | December 07, 2012

Joseph Hardesty and Richard Churches appeared in court last Thursday for an all-day preliminary hearing regarding the Big Cut Mine.

Glenn Peterson, attorney for Churches, first announced that he and Hardesty’s attorney, William Brewer, were seeking a continuance on the hearing. He said that deputy district attorney Michael Pizzuti had violated court orders from Judge Carl F. Bryan II, who had been a visiting judge in place of Judge Douglas C. Phimister at the previous hearing.

Although over 9,000 pages of discovery had been given to the defense, Peterson said, they still “could not tell what the specific charges are and how they lined up” with the discovery. He also noted the discovery had “trickled in at a glacial pace.” They received items on Nov. 16 that the court order required to have been received by Nov. 5, he said. A witness list was also missing, as well as information that could be exculpatory. Peterson said that they “can’t put up a meaningful defense in these conditions.” He went on to say that he had made two informal requests for water samples regarding the hazardous waste charges, but Pizzuti told them that the agencies did not have the sample. “Shucks,” Peterson said sarcastically.

“We’ve heard these arguments before,” Pizzuti said, noting that most of Peterson’s complaints were courtesies, not needed for a preliminary hearing. He noted that there were many witnesses gathered to give testimony for the hearing.

After discussion on the matter, Phimister ultimately denied the continuance motion and the hearing began in earnest with the first witness called to the stand.

Will Arcand, a senior engineer geologist for the state Mining and Geology Board, was sworn in. Arcand is the board’s surface mine inspector and expert on the Surface and Mining Reclamation Act, or SMRA. He testified that for a mine to be operating legally, it needs either a local permit from the county or city the mine is in or a vested interest, meaning it has been continuously mined since 1976; an approved reclamation plan for when the mine is shut down to bring the area back to usable condition; a financial assurance bond to make reclamation possible if the owners abandon the land; and a California Environmental Quality Act — better known as CEQA — analysis.

In late 2007, Arcand met with Churches at the mine to discuss the potential for a reclamation plan. Arcand inspected the site for two hours with Churches, finding no land considered disturbed, he said, though historic mining had occurred on the land. Between 35 and 40 acres were proposed for the mine on the 150-plus acre parcel.

However, subsequent years saw the approval process jerking to a halt, with the CEQA process stopped and looking into whether Hardesty and Churches had a vested right to mine. In 2010, it was determined that they did not. In September of that year, a violation was issued to the duo for mining without a permit — a $100,000 fine. It had been found in April that 4 acres had been used for surface mining, Arcand said, mainly used for prospecting. He also, on a site visit regarding the vested interest claim, observed equipment being built and a sluice “obviously used in the collection of gold mineral.”

On Jan. 28, 2011, Arcand returned. This time, 12 more acres had been disturbed, he said. Grading and excavation had been done, a surface mining processing plant was built, and there was “significant expansion.” April 2011 saw the Department of Fish and Game receiving a complaint from a Weber Creek fisherman that the water had suddenly, over just a few minutes, gone from clear to polluted.

In January 2012, a second citation was issued to the mine owners, this time for $750,000 for continued mining.

Arcand, after questioning by Brewer, noted that the previous mining operation on the site, then owned by Clinton Donovan, had ceased in the 1990s, but Hardesty and Churches still believed they had a vested interest.

Next to the stand was Pierre Rivas, the principal planner with El Dorado County. Rivas first visited the site in 1998 when Donovan was the owner. He had seen an increase in activity over the years since the late 1990s, he said, and met Churches in 2003.

His first meeting with Churches, he said, was with the man driving up in a pickup truck, jumping out, and telling them that he was the one mining and to arrest him, Rivas said. Rivas and his companions instead told the man to calm down and they had a rational discussion.

Rivas also told a bit of the history of the parcel, which had been mined since the late 1800s until it was shut down after Donovan was unable to come to compliance. There had been a number of complaints from 2002 to 2003 and multiple complaints of activity since 2008, he noted. It was not Donovan, who was in Oregon at the time. After a few other potential buyers had looked at the site, Rivas said, Hardesty bought the land.

Peterson made a note that the box of files Rivas had on the mine had been provided to Pizzuti, but not to the defense.

The county enforcement officer, Jim Wassner, was called to the stand. Wassner had accompanied both Arcand and Rivas on site inspections. When he met with Hardesty to give him the first citation on Jan. 28, 2011, “he said the federal, state and county agencies were violating his rights and he had no intention to stop.”

In November 2011, Wassner had observed activity from a parcel above the mine, when Hardesty came up to him and spoke to him, telling Wassner that he could not be there, but not told he was trespassing.

In January 2012, a year after he had served the first search warrant of the property, Wassner served a second warrant to get updated information on the operation, noting there had been growth in the operation.

The final witness called was David Nicolls, the fisherman who filed the complaint. Nicolls, who grew up in Diamond Springs, was fishing in Weber Creek on April 23, 2011, and noted “how clear and nice the water was.” But, he said, “It became opaque,” and he was unable to see more than six inches down into the three-foot-deep stream. It happened within minutes, he said. He also noticed a smell he could not place.

He decided it was no longer worth fishing, but was curious and followed the pollution about 150 years up into a gully. “It was kind of a milky gray color,” he said, noting that the dirt was coming from a “significant amount of water” from up the hill.

He reported the change in water to Department of Fish & Game and set out to collect a sample in a jar. Four hours later, when he returned, the “discharge had reduced to very little.” The main part of the creek was still milky, however, and lasted about a third of a mile.

He received a call back from DFG, and the next day met with two wardens at the creek. They noticed excavation taking placed when they followed the water.

As the hearing had, at that point, taken the entire day and it was 4:30 p.m., Phimister decided to cut Nicolls off, declaring that the attorneys had already waived the single-day hearing rule and that the hearing would be continued. The attorneys all agreed to return with witnesses on Feb. 7, 2013 at 8:30 a.m.

Cole Mayer

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