Lemon Cove Residents, CEMEX Work on Settlement

If you say something often enough then people will start to believe it, right? That’s what politicians and spin masters do. That also seems to be the modus operandi of CEMEX. At every opportunity Patrick Mitchell, the lawyer for CEMEX, blames the drought on the fact that four domestic wells next to CEMEX’ Stillwell mine in Lemon Cove went dry. He says with a straight face that it doesn’t matter if the mine is there or not, “It is drought-related that the wells went dry.”

Sissy Morton and her grandchildren trying to complete her home dialysis in a sanitary environment with no water.
Sissy Morton and her grandchildren trying to complete her home dialysis in a sanitary environment with no water.

Tully and Young, an independent consulting group, responded in February of this year to CEMEX’ assertion. They reported that, “the shallow groundwater aquifer at the quarry site is isolated from the broader groundwater elevation concerns in the rest of Tulare County or the San Joaquin Valley. A figure presented in the Final Memo (p.17) generated using a Department of Water Resources groundwater information tool, demonstrates that the Lemon Cove area actually has seen a general increase in groundwater conditions between spring 2013 and spring 2014. The specific conditions at the neighboring wells, however, saw the opposite condition during this same period.”

Tully and Young’s report explains why, during this statewide drought, not one well in Lemon Cove has gone dry nor lost elevation–that is except the four wells next to CEMEX’ Stillwell gravel mine.

Mitchell’s assertions were uttered again at the February 25 continuation of the public hearing concerning CEMEX and the effected residents.  This was the second hearing in a process that was started last December 10. The first hearing included three and a half hours of presentations and testimonies over who was at fault for the wells going dry, the future of CEMEX’ conditional use permit, and appropriate compensation for the residents’ losses.

Mike Spata, director of Resource Management Agency (RMA), started the February 25 hearing by informing the planning commission that CEMEX and the four effected residents had entered into negotiations and seemed to be making progress. He said that lawyers for both sides have been talking and exchanging documents. He recommended that the Planning Commission give the process 30 more days to see if they can reach a settlement. Mitchell and Ray Carlsen, the lawyer for the residents, concurred with Spata.

The planning commission thus voted unanimously to extend the public hearing for 30 days. The next hearing is scheduled for April 8 at 9am in the supervisors’ chambers. Public comment is welcome.

According to Carlsen, the two lawyers met once in early January, and then right after the second public hearing on February 25. Spata participated in both as a mediator. Carlsen was optimistic that the residents had a shot at settling.

Carlsen said that it’s a good time for the effected residents  to put together a settlement offer. He doesn’t trust CEMEX to get it done, or do a sufficient job, so he planned on taking the initiative. Carlsen will be meeting with the residents on the afternoon of March 8, when he will present a draft agreement that the families can review and amend, Carlsen will then present their proposed settlement to CEMEX, which CEMEX is expected to counter. Carlsen predicted that neither side will be happy with the final settlement.

All negotiations between the residents and CEMEX are confidential so both sides can talk freely between themselves. Possible terms of the settlement include digging each home a deeper well, financial compensation for their expenses, or digging a well by Terminus Dam and running a pipe to the homes. The idea of connecting to the Lemon Cove Sanitation District was suggested but the pipes are more than a mile away. The aforementioned terms are all poor solutions.  Digging new wells may produce no water and compensating the residents for their expenditures doesn’t address the loss of their life’s investment, which for most is their home. CEMEX’ mining activities have left the homes without water and thus worthless.

During public comment, Woodlake’s Julie Bigham, who lives close to the Lemon Cove facility, asked the planning commission what their end game was. “What happens when the water is turned off, the mine goes idle, or CEMEX’ permit gets revoked? What happens then? You have to disclose all this if you want to sell your home and their homes are permanently branded.” She said that modifications can be done but once settled, the residents won’t have as much say so or any recourse if it happens again.

Rob Morton, the only effected resident who could juggle his work schedule to attend the hearing, reiterated the fact that CEMEX was blatantly lying about the drought being the cause of the wells going dry. Not a stones’ throw away from his house is a 30 acre pond 50-feet-deep full of water, now and all through the summer, created by CEMEX’ mining activities. He also reminded the commission that most Tulare County families do not have the resources to take off work to attend meetings and hearings and fight multi-national companies, nor should they have to.

Morton’s main question was what happens if the resident’s settle and then CEMEX leaves or executes a faulty reclamation of the property. He wanted to know what guarantee the county would give them, as the issuer of the mining permit, that they would enforce the conditional use permits.

“I don’t want to go through this again. This has been nothing less than Hell,” said Morton.

Resolving the Problem

Carlsen explained that there are only two ways to settle the issue. One, negotiations, where each party has control over the process or two, litigation, where control is given up to a judge and jury.

Oroville and Mary Cloud with their dog Patches with the RMA provided water after their well went dry.
Oroville and Mary Cloud with their dog Patches with the RMA provided water after their well went dry.

But the residents who live along the Lemon Cove facility, a gravel mine taken over by CEMEX, don’t agree. Their opinion is that the RMA recommended approving the mine, the planning commission put together the conditional use permit, and the supervisors voted on it. Thus the county is ultimately responsible.  In every instance where mining in the aquifer was proposed, there was expert testimony and appeals against it. The consequences of digging in the county’s aquifer have been debated and proven since the first disastrous Artesia mine in Dry Creek in the 1960’s. For 50 years Tulare County residents have told the supervisors how mining in the riverbed has ruined their properties and sometimes their lives, but the supervisors continue to approve their permits.

Carlsen concurs that digging in the aquifer is a bad idea. He said that nature made the river basins perfect underground filters where the water can easily flow. He said that problems have been plaguing these mines that dig up the aquifer for years, and that this case is just one little piece of a bigger problem. “The problem is that the planning commission puts together all these conditions for the use permit, then just puts it on a shelf and forgets about them. No one is enforcing them.” According to the conditional use permit for the Stillwell mine, CEMEX was supposed to be providing data every month to the RMA on water levels in the wells. If CEMEX had been complying to their conditional use permit, and the RMA had enforced the conditions, the resident’s wells would have never gone dry.

Spata has defended the RMA, saying that the agency has acted on the matter as quickly as the process has allowed, which is true. The Tulare County residents’ point is that RMA should have not let the situation happen in the first place.

A grandmother who lives next to the Lemon Cove Facility said that it’s sad that those residents who don’t have the money to hire a lawyer could lose everything. Because CEMEX has unlimited resources with which to fight, the little guy is always forced to settle. Even a wealthy person could not afford to take CEMEX to court. CEMEX, by comparison, has limitless funds to just wait the little guy out until they die or run out of money. The Lemon Cove Facility neighbors have been fighting–first RMC Pacific Materials, and now CEMEX–for 20 years over their wells going dry because of mining activities.

As for the residents living next to the Stillwell mine, it was a local benefactor who fronted the money to pay Carlsen’s $250 hourly fee, an amount that few of the plaintiffs make in a week. Many wonder why it has fallen on the shoulders of such modest Tulare County residents to fight a multi-national company to get it to comply with a permit issued by the county. Carlsen pragmatically says that, as is always the case, the residents next to the Stillwell mine will have to settle. “Who is going to pay to take CEMEX court? Something is better than nothing.”

CEMEX Begins Filling V-Trench at Lemon Cove Facility

Although the Lemon Cove Facility is not part of the equation in this round of negotiations, CEMEX has realized they need to deal with the wells that have lost water at this mine also. Without any advance notice, and no recent discussion, CEMEX started to fill the recharge trench that runs next to the Lemon Cove Facility. Frank Callahan, who has not been able to fully irrigate his citrus since CEMEX shut off their pumps, is at the beginning of the recharge trench that runs west to east. His well went up eight feet in a matter of days. Nancy Long, who lives further up the trench, had her well go up by two feet.

The trench built at the Lemon Cove Facility was a trial case to see if it would maintain the neighbors’ well water levels, and it worked. That is how CEMEX knew that when they turned off the pumps at the Stillwell mine the resident’s wells would go dry. The drought, for CEMEX, was just a happy coincidence.

George Clausen, who has also been fighting the adverse effects of mining in the Kaweah River aquifer for 30 years, said that CEMEX won’t talk to them. There was no warning or explanation why they started filling the recharge trench. The Lemon Cove Facility processes gravel but no longer functions as a mine. A local farmer’s theory is that CEMEX waits and sees how much they can get away with until their lawyers sound the alarm that they could get sued. The farmer, whose agriculture wells have lost half of their water, thinks that after the Fresno Bee article came out blaming CEMEX for the dry wells that the company lawyers realized, “maybe we should do something. This is getting widely known.”

Reclamation Plans Need to Be Reassessed

Including the Lemon Cove facility in the settlement negotiations was contemplated because both sets of farmers and residents had depleted wells because of CEMEX’ mines. But the Lemon Cove facility has one huge glaring difference from the Stillwell mine. The Lemon Cove Facility consists of two mines–an older, larger mine, and a newer, smaller one–but both were approved without an Environmental Impact Report. When the older mine got its permit, EIRs were not mandatory. Then, because no EIR had been done on the older mine, the newer mine got approved under a negative declaration, meaning an EIR was not deemed necessary. The end result is that neither have a feasible reclamation plan.

The first thing out of Mitchell’s mouth, after blaming the drought, was the fact that he didn’t think it was necessary to reexamine the reclamation plans. “There is no evidence that the reclamation plan won’t work.” Clausen has been fighting an uphill battle for the RMA or Board of Supervisors to force CEMEX to update their reclamation plans. Because there is no EIR, he wants something on paper explaining how CEMEX plans to restore the property to what it was before the mine arrived. He also wants there to be sufficient financial reassurances in case CEMEX botches the job.

CEMEX’ delaying tactics seem to have worked, as reassurances and review of the reclamation plan has not been yet put on the table. The gravel mining company does not want to revise their reclamation plans because to really reclaim property would costs hundreds of thousands of dollars and reassurances should be the same. Right now the money set aside to fix a botched reclamation job by CEMEX is a paltry $52,588.78.

The Next Step

CEMEX might be asking for a new mining permit at McKay Point by the end of this year. Unless the gravel mining company can show good faith in compensating their Stillwell neighbors for their loss of property value then World War III may break out if the Tulare County Supervisors grant them one more mining permit.

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