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Posted 08.15.08
Mining Mendo's Dunes - The Anderson Valley Advertiser

By Tim Stelloh

Every time Charlie Baxman gets an order for sand, one of his yellow bulldozers shovels it into the back of a gravel hauler. The sand is hauled, dumped in ditches, and delivered for underslabs in construction projects.

For years, this has been Baxman Gravel's routine at mile marker 65.95 on Highway One - otherwise known as the southern tip of Ten Mile Dunes, Mendocino County's only "coastal dune system."

Since the 1950s - when Baxman began paying the property's former owner, Tillo Galliani, 15 cents a yard for his sand - the company has mined thousands of cubic yards of sand each year. According to County records, Baxman is allowed to mine up to 10,000 cubic yards annually, and its yearly take averages around 7,500 cubic yards.

But after 50 years of mining, the 6,000 year-old dunes are disappearing.

Residents say that where there was once a brilliant, beige ridge, there are ground-level lumps of sand. Where there was once a slope, there are the twisted tracks of a bulldozer. And Charlie Baxman says that he will mine the dunes, which make up one of 27 dune systems in California, on his 39-acre parcel until they're gone.

In 1997, Baxman was granted "vested rights" to mine the land, which he bought in 1977 from the Galliani family. After proving that he had been mining Ten Mile since the 1950s, Baxman was "grandfathered in," allowing his company to continue doing what it had been doing for 50 years.

"There's no way they would be approved today," said John Speka, a surface mining planner with the Department of Planning and Building. "The ecological part of this is all out of whack, and their reclamation is non-existent," he said, describing Baxman's "reclamation plan," or its blueprint to return the mine to its natural state. "The wind blows and replaces the sand. It's 'self-reclaiming.'"

If that's so, how did Baxman get vested rights to the property?

It all started in 1993, when the California Office of Mine Reclamation discovered Baxman's operation and said it was subject to the California Surface Mining and Reclamation Act, or SMARA, which was created in 1975 to regulate mines.

Before then, Baxman had operated under the radar, according to County records. Planning and Building said that the company had never applied for a use permit - as is required by law - and was never fined for its nearly two-decade indiscretion. Baxman disputes this, saying that he followed all the rules. "The County knew what we were doing the whole time," he said. "We had talked to them, we had virtually all the permits that were required at the time."

In a letter from Baxman to the County, the gravel company said it should be exempt from State and County restrictions, since its mining "was of an infrequent nature" and "involved only minor surface disturbances." When the Department of Conservation said that claim was bogus, Baxman applied for vested rights with the County and with the California Coastal Commission.

Over the next several years, dozens of letters connected Baxman with an ever-widening maze of State, County and local bureaucracies. The Planning and Building Department, the Coastal Commission, the Department of Conservation, the Department of Fish and Game, the Mendocino County Water Agency and the Department of Parks and Recreation are just a few names in the alphabet soup that engulfed the vested use process. Baxman, for its part, unearthed 50-year-old receipts to prove that it had been mining at Ten Mile for as long as it said it had. And mine supporters submitted letters of recommendation.

A letter from Caltrans, one of Baxman's biggest customers, said that, "The drifting sand [from the dunes] has the potential to encroach onto portions of the roadway. Conceivably, during extreme weather conditions, the sand could completely block the traveled way causing severe inconvenience and expense to the public."

In 1996, the Coastal Commission rejected Baxman's application for vested rights, saying it was incomplete. Shortly after, so did Planning and Building. Because Baxman had never obtained a permit to mine at Ten Mile, it was "in violation of county ordinances," a department letter to Baxman said.

In the meantime, nearly every government agency involved had become "concerned" about the mine, according to a letter from Planning and Building. Renee Pasquinelli, a senior resource ecologist with State Parks, said that questioning the wisdom of Baxman's mining practices "was like opening a hornet's nest."

She suggested that Baxman hire dune experts to assess not only the mine's environmental impact on the dunes, but on the Inglenook Fen - an even more rare and fragile ecosystem a mile north of the dunes.

So far, Baxman has refused. "We aren't bothering the dunes," he said.

But Pasquinelli says that if the dunes were "destabilized" by the mining, there's a good chance the Caltrans prophecy could come true: If enough sand was taken, she says, the dunes' "eastward movement" could be accelerated. And that means the sand could, conceivably, blanket Highway One.

Other "concerns" were voiced by the Department of Fish and Game, the Department of Conservation and the local water agency, according to a letter from Planning and Building. Sensitive plant species hadn't been considered, the letter said, and there was no end in sight for the mining operation.

A few residents were teed off as well.

"Baxman Gravel Inc. should not have a right to mine 10,000 yards per year from the sand dunes," one letter in County records read (the name on the letter was illegible). "Sand dunes are very fragile ecosystems, and one has only to look to southern California to Pismo and Morrow Bay to see the result of intrusion which began with only minimal incurance. Those dune fields are now all but destroyed. We do not need to make the same mistakes with this marvelous area to satisfy the monetary gain."

Despite the concerns, Baxman appealed to the Planning Commission. And, against the recommendation of staff at Planning and Building, the Commission unanimously approved the application.

The company continued operations without an environmental study, and without a substantial reclamation plan. After the permit was approved - and the rec plan was submitted - the folks at the Department of Conservation told the County that Baxman's plan was hardly up to snuff. That is, the department said the rec plan met neither the "minimum requirements" of SMARA nor the State Mining and Geology Board.

Baxman has still not submitted a rec plan that meets those requirements. And neither the County nor the State has held the company accountable. The only reclamation plan the County has on file say this: "Since the operator is not changing the existing topography of the property, and no vegetation grows on the sand, no extensive reclamation would be required."

"I think that there should have been some restrictions locally," says Steve Heckeroth, a global warming and peak oil activist, and one of the planning commissioners who approved Baxman's vested rights. Even so, Heckeroth says, if he were faced with the same decision today, he would approve the permit. Conserving fossil fuels - and not having to haul the sand in from another County - takes precedent over preserving the dunes, he says.

Though Baxman applied with both the Coastal Commission and the Planning Department for vested rights, it's unclear whether or not the company needed approval from both agencies to continue its operations. The Coastal Commission couldn't comment in time for this article, but the last correspondence in County records between the Coastal Commission and Baxman was about a month after the County approved Baxman's vested rights, on January 7, 1998.

The letter, from Jo Ginsberg, who's now with the Coastal Commission's enforcement division and couldn't comment on this case, says that even though the Planning Commission approved Baxman's vested rights, the company still needed approval from the Coastal Commission. A letter from Frank Zotter Jr., Mendocino County Counsel, echoed this in a letter to Planning and Building. "If Baxman did not receive approval from both the Coastal Commission and the County," he wrote, "Baxman would not have a vested right."

But after the January 1998 letter, the Coastal Commission seems to have fallen off the map. And Baxman, of course, has kept on mining at Ten Mile.

Planning and Building, meanwhile, doesn't seem eager to reopen the hornet's nest. "If there was environmental degradation we could do something," said Frank Lynch, a senior planner with Planning and Building. "But I don't know. I haven't gone down that path."


	A view from the sandpit

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