Van De Kamp, 033083 CAAGO, AGO 82-1105

• Case Date: March 30, 1983
• Court: California

JOHN K. VAN DE KAMP Attorney General RODNEY O. LILYQUIST Deputy Attorney General AGO 82-1105 No. 82-1105 California Attorney General Opinion Office of the Attorney General State of California March 30, 1983          THE HONORABLE JOHN A. DRUMMOND, COUNTY COUNSEL, MENDOCINO COUNTY, has requested an opinion on the following question:          Does gravel constitute a "mineral" for purposes of the State Surface Mining and Reclamation Act of 1975?          CONCLUSION          Gravel constitutes a "mineral" for purposes of the State Surface Mining and Reclamation Act of 1975.          ANALYSIS          The Legislature has enacted a comprehensive statutory scheme, the State Surface Mining and Reclamation Act of 1975 (Pub. Resources Code, §§ 2710-2795)1(hereafter "Act"), regulating the extraction of certain minerals throughout the state.          Under the Act, cities and counties are responsible for issuing permits for "surface mining operations" in their jurisdictions on condition that the operations comply with the state regulatory requirements. (§§ 2728, 2770.)          Section 2735 defines "surface mining operations" as follows:

         "'Surface mining operations' means all, or any part of, the process involved in the mining of minerals on mined lands by removing overburden and mining directly from the mineral deposits, open-pit mining of minerals naturally exposed, mining by the auger method, dredging and quarrying, or surface work incident to an underground mine. Surface mining operations shall include, but are not limited to:          "(a) Inplace distillation or retorting or leaching.          "(b) The production and disposal of mining waste.          "(c) Prospecting and exploratory activities." (Emphasis added.)

         In order to obtain a permit, an operator must submit a plan of reclamation to the city or county for approval. (§§ 2770-2774.) The plan must include "[a] description of the manner in which reclamation, adequate for the proposed use or potential uses will be accomplished" and "[a] statement that the person submitting the plan accepts responsibility for reclaiming the mined lands in accordance with the reclamation plan." (§§ 2772, subds. (h), (j).)          The question presented for analysis is whether the provisions of the Act are applicable to gravel extraction operations. We conclude that they are.          More specifically, the issue is whether gravel may be classified as a "mineral" for purposes of the Act. Previously, numerous courts have examined whether gravel is a mineral in other contexts, and sometimes the conclusion has been that gravel is a mineral (see, e.g., United States ex rel. Tennessee Valley Authority v. Harris (5th Cir. 1940) 115 F.2d 343; Edwards v. Kleppe (9th Cir. 1978) 588 F.2d 671; Hallenbeck v. Kleppe (10th Cir. 1979) 590 F.2d 852; United States v. 1,253.14 Arces of Land, etc., State of Colo. (10th Cir. 1972) 455 F.2d 1177; Foster v. Seaton (D.C. Cir. 1959) 271 F.2d 836; Wright v. Carrollton Gravel & Sand Co. (Ky. 1951) 242 S.W.2d 751; Matthews v. Department of Conservation (1959) 355 Mich. 589 [96 N.W.2d 160]; Cole v. Berry (1962) 245 Miss. 359 [147 So.2d 306]; Burris v. State ex rel State Highway Commission (1975) 88 N.M. 146 [538 P.2d 418]; Loney v. Scott (1910) 57 Or. 378 [112 P. 172]; Puget Mill Co. v. Duecy (1959) 1 Wash.2d 421 [96 P.2d 571]; Tate v. United Fuel Gas Co. (1952) 137 W.Va. 272 [71 S.E.2d 65], while at other times the opposite conclusion has been reached (see, e.g., Frostad v. Kitchens (5th Cir. 1967) 377 F.2d 475; Bumpus v. United States (10th Cir. 1963) 325 F.2d 264; Harper v. Talladega County (1966) 279 Ala. 365 [185 So.2d 388]; Farrell v. Sayre (1954) 129 Colo. 368 [270 P.2d 190]; Kinder v. LaSalle County Carbon Coal Co. (1923) 310 Ill. 126 [141 N.E. 537]; Wulf v. Schultz (1973) 211 Kan. 724 [508 P.2d 896]; Holloway Gravel Co. v. McKowen (1942) 200 La. 917 [9 So.2d 228]; Fisher v. Keweenaw Land Association (1963) 371 Mich. 575 [124 N.W.2d 784]; Resler v. Rodgers (1965) 272 Minn. 502 [139 N.W.2d 379]; Witherspoon v. Campbell (1954) 219 Miss. 640 [69 So.2d 384]; Rickelton v. Universal Constructors Inc. (1978) 91 N.M. 479 [576 P.2d 285]; State ex rel. State Highway Commission v. Trujillo (1971) 82 N.M. 694 [487 P.2d 122]; Hovden v. Lind (N.D. 1981) 301 N.W.2d 374; Convis v. State of North Dakota (N.D. 1960) 104 N.W.2d 1; Beck v. Harvey (1944) 196 Okla. 270 [164 P.2d 399]; Whittle v. Wolff (1968) 249 Or. 217 [437 P.2d 114]; Heinatz...