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County, Mesquite to seek appeals court rehearing on land swap

January 11, 2001|By RUDY YNIGUEZ, Staff Writer

The county will join with the owners of the Mesquite Regional Landfill in seeking a rehearing on federal appeals court ruling that said a land swap between the landfill owners and the U.S. Bureau of Land Management was conducted improperly.

At the heart of the rehearing petition is the 9th U.S. Circuit Court of Appeals' decision mischaracterized the county's 1993 general plan process as evidence that the landfill was reasonably probable and by characterizing the landfill as a virtual inevitability, and that the decision errs by citing the county's tax assessment of an operating landfill as evidence that BLM's appraisal underestimated the value of the selected federal lands.

"We're seeking a reconsideration of that decision and we're hoping they'll grant that reconsideration," said Whit Manley, attorney for Arid Operations Inc. and Arid parent, Gold Fields Mining Operations, which own the landfill. "It's basically a way of saying, ‘Court, we think you got it wrong.'"

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The appeals court decision states at the time of a 1994 land appraisal "that the landfill would be legally permissible"; that the environmental impact report associated with the county's general plan change "described the landfill project as a ‘reasonably foreseeable future project,'"; that the EIR determined the landfill would have no unmitigable, significant adverse affects on agriculture, traffic circulation, sensitive biological resources, cultural resources, air or water quality"; and the draft EIR described the landfill project as the ‘preferred action' for the property.

"These factors indicate that some of the necessary permits and authorization from the county and federal agencies would be obtained," the decision states. "Before the appraisal was made, the county identified a landfill as the use for the selected lands. It follows that there was a reasonable probability that a zoning change would occur."

The county and Arid disagree with the court's contentions. The county's briefing states the court erred on those issues. The county points out it had already received a permit application for a landfill before the draft EIR for the general plan was conducted and that state law requires the environmental study to include an analysis of cumulative impacts on a list of past, present and reasonably anticipated future projects.

"Thus, in preparing an EIR for the 1993 general plan, the county had to include in its cumulative impact analysis all projects for which it had received applications for entitlements," the county brief states. "Accordingly, the county's 1993 general plan EIR identified four ‘reasonably anticipated' projects, including the (Mesquite Regional Landfill) and another proposed landfill, for purposes of this analysis. The county did so because the county had received permit applications for, or was otherwise aware of, these four proposals."

On the tax assessment issue, the court states BLM for tax appraisal comparison purposes before had a 120-acre operating landfill whose assessed value was $46,000 per acre, and that BLM should have used that assessment to arrive at a value for the land to be swapped.

"The government must not wear blinders when it participates in a real estate transaction, particularly if the result, as here, is the transfer of a flagrantly undervalued parcel of federal land to a private party," the court stated.

The county argues, however, that the court erred by citing the assessment of an operating landfill as evidence that BLM's appraisal underestimated the value of the selected federal lands.

"Tax assessments are not relevant to valuation for condemnation or exchange purposes," the county's brief states. "To this day, Gold Fields has entered no contracts to receive waste at the landfill. MRL is located roughly 200 miles from its market area. No physical improvements have been constructed. Assigning value to income streams that do not exist, and may never exist, would involve pure speculation."

Manley appeared before the county Board of Supervisors on Tuesday and said its participation in the lawsuit is welcome and the county will pay nothing for that participation. He said the county's participation — in the form of an amicus curiae, or friend of the court, briefing, would serve to educate the appeals court on how the county conducts its business.

The lawsuit against the land swap was filed by three environmental groups — Desert Citizens Against Pollution, the Sierra Club and the Desert Protective Council. The groups first pursued their complaints through administrative channels. Upon failing, they turned to the courts, arguing that DCAP members use the area for recreation, aesthetic and scientific purposes and that the land exchange was arbitrary, capricious and an abuse of BLM's discretion and exceeded the statutory limitations on BLM's authority to exchange public land under the Federal Land Policy and Management Act.

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