By Chip Ashley
At a special hearing on May 30, the Fresno County Planning Commission voted 4-3 to deny a conditional-use permit to multinational corporation CEMEX to mine Jesse Morrow Mountain. Opponents to the mine in attendance broke into an ecstatic cheer.
But this struggle is not over. CEMEX appealed on June 12 to the Fresno County Board of Supervisors. The hearing is set for Aug. 28 in the Fresno County Ballroom (the same place as the May 30 hearing).
Locals must mobilize for the hardest test yet: motivating the Fresno County Board of Supervisors to vote down the proposed mine.
Jesse Morrow Mountain, called Wa-ha-lish or Wahallish by the Choinumni Yokuts, who consider it sacred, is the majestic foothill just east of Minkler in eastern Fresno County. Along with its near twin, Campbell Mountain, just to the south, Wa-ha-lish acts as gatekeeper on California Highway 180 on the way to Sequoia and Kings Canyon national parks. In the spring, her green and flowered skirt sweeps down to the scenic highway from the north.
In 2002, Ready Mix Corp. (RMC) attempted to purchase property on both Campbell Mountain and Wa-ha-lish to site an aggregate mine. The deed holder of the property on Campbell Mountain refused to sell, but the holder of the Wa-ha-lish site did sell to RMC. According to Darby Smith of Friends of Jesse Morrow Mountain, locals soon organized to oppose the mine they knew was coming. Professor Michael Becker of CSU Fresno helped form the Friends of Jesse Morrow Mountain (FJMM).
RMC applied for a conditional-use permit in 2005. News stories appeared in publications like the local Sierra Club chapter’s Tehipite Topics, the Community Alliance newspaper and the Fresno Bee, including two by Bill McEwen. There were radio interviews, letters to the editor, calls to government officials and commissions. The new Progressive Network has recently thrown its substantial support behind the effort.
Along the way, the huge multinational corporation, Cemex, acquired RMC. The original environmental consultant, Greystone Environmental, was replaced with Benchmark Environmental. Benchmark produced the draft environmental impact report (DEIR) in October 2009. Some 450 comments were submitted in response to the DEIR, nearly all of them in opposition to the project. These comments came from groups as diverse as Earth First! and the Reedley chapter of the National Federation of Republican Women. High school students as well as scientists wrote comments. The final EIR (FEIR) came out in December 2011, which led to the Feb. 9, 2012, hearing; that hearing was continued to May 30 because hundreds of opponents did not get to speak.
Locals have many reasons to oppose this mine: air pollution, road congestion, noise, water use, Native American cultural tradition, negative effects on neighboring property values and local businesses, as well as harm to local flora and fauna, such as the rare Keck’s checkerbloom and adobe sunburst. One of the most important reasons cited by opponents is the fact that CA 180 is a scenic highway and the entry to both Kings Canyon and Sequoia national parks.
The May 30 Hearing
The May 30 hearing was contentious, marked by vociferous outbursts and applause from about 100 project opponents. It began with a report from commission staff (who recommended permitting the project) and many critical questions from the commissioners. Then came public comment, followed by presentations first from Cemex’s attorney Pat Mitchell and then from FJMM attorney Marsha Burch and Dr. Gene Otto.
Perhaps the crucial moment came when Commissioner Ross Borba questioned staff and the consultant about Cemex’s “fair share” of costs to bring road infrastructure up to standard by opening day.
Borba: When are the repairs and $4.5 million of construction work going to be done?…Which is it? Is it going to be done before they start? Or is it just a deposit date?
Staff: It would be a deposit date. The balance of the funds would not be available unless additional development came in.
Borba (rather sarcastically): I think I understand now what “certain payments” and “to address” really mean. It doesn’t mean that brick and mortar work is going to get done. It just means, okay, well, we’ve addressed it.
Whistles and shouts accompanied the audience’s elated applause. Locals would have to share these roads—as is—probably for years before Cemex contributed its fair share to improve roads and highways to a safe level of service. When if ever the improvements came, Cemex would attempt to externalize the costs onto taxpayers and cost the county and state more than the project would ever produce in revenue.
There were several other “Ah ha!”moments.
Geologist David Cehrs exposed inaccuracies regarding landslides and potential landslides on Jesse Morrow. “The proponents said there were no landslides, no landslide impacts, in the EIR. Immediately to the east of their property are two huge landslides. With the project they are going to remove the soil, exposing fractures and joint sets in the rock. Rainwater will penetrate into those joint sets and fractures. There are three pertinent triggers for landslides: One, you put water in there, it works as a lubricant. Two, they are going to undercut the slope so there is nothing holding the bottom of the slope. And three, another trigger for landslides is shaking, typically that would be earthquakes. In this case, they going to wind up blasting every day, and there’s going to be shaking every time.”
Geologist Robert Merrill repeated Dr. Cehrs’ warnings, adding that Fresno County no longer employs a geologist so that the county must rely on geologists paid by Cemex to evaluate the project.
Wa-ha-lish neighbor Toni Pacini addressed the missing core sample: “Where’s the core sample? How can the geologists say what they saw if they can’t show us what they saw? We don’t have the core sample. How can they move forward without the core sample?” How can independent geologists review the proponent’s geologist’s findings if the core samples are missing?
Former NASA scientist Pat Cassen of Miramonte attacked the air quality conclusions in the FEIR and the Staff Report. Staff had dismissed his comments of particulates (dust) as based on the wrong formula. Cassen showed he had used the very same formula included in the environmental impact report. Clearly, staff was caught with their pants down.
One of the most intriguing and edgy moments came when a young man introduced himself as John Brown: “My name is John Brown and I am the abolitionist that led the raid on Harper’s Ferry…I [am] very concerned about the rising tide of eco-terrorism. I am here to warn you that at this very moment eco-terrorists are plotting. There is an extremist group in our community planning to use explosives—bombs!—bombs!—to blow up a noted cultural and historical landmark that’s important to the citizens across the county. They are very sophisticated. They have a history of violent acts. They are motivated by filthy, filthy greed and hatred for the human and the nonhuman communities. Ladies and gentlemen, these eco-terrorists are sitting among us today, right now, right this minute. And they are the people who want to put bombs on a sacred mountain and blow it up.”
Many warned of Cemex’s long list of environmental infractions.
Some 30 locals spoke up. Some 70 others opposed to the project filled out the audience. All of them contributed to this victory, but opponents will have to bring equally good commentary and much greater numbers to the Board of Supervisors’ hearing.
Dr. Becker was troubled by the commissioners’ deference toward Cemex. “We are your constituents, and I feel that there is a certain amount of antagonism toward us, whereas you treat this very slick lobbyist from Cemex with complete deference.”
Dr. Becker added, “You had testimony at the February meeting from one of the Choinumni who was paid off by Cemex to say there is no cultural significance. That individual, Stan Alec, stood up and told you there was a ghost dance held on that mountain in 1890. That means there is cultural significance.”
(See related story: Why Wa-ha-lish (Jesse Morrow Mountain) Is Sacred to the Choinumni)
The ghost dance started about 1870—a desperate response to the merciless onslaught of the capitalist culture on the indigenous peoples of America. The dance was revived in 1890 after the massacre at Wounded Knee.
Alec’s ironic comment, offered to dismiss the mountain’s cultural significance, hung numinous in the hushed moment as a sort of miracle. It was as if Mother Earth were speaking through Alec to mock the Kings River Farm Choinumni who supported the mine because they were promised 40 acres and some money to say the mountain is not sacred to them.
The Conclusion of the May 30 Hearing
Cemex attorney Pat Mitchell then made a competent but conventional rebuttal, in which he attempted to explain away such issues as “fair share” and air pollution. The commissioners looked unimpressed.
FJMM attorney Marsha Burch and Dr. Otto made an impassioned final appeal to the commission to deny the permit.
Suddenly, Commissioner Chris Mendes moved to deny the permit, and he was joined by Commissioners Borba, Randy Rocca and chair Glenn Niswander in voting for the motion. The permit was denied. Cemex said that it would appeal.
Cemex Appeals to the Board of Supervisors
Cemex representatives told reporters the company would appeal the ruling of the Planning Commission. All of us opposed to the mine expected an appeal and watched the Fresno County Web site and the Fresno Bee for news of the appeal. I was surprised not to see a story in the Bee. But the absence of such a story is another example of why we need alternative media in this region.
When we had received no notification of the appeal from either the planning commission or the local media by June 19, I took it upon myself to look into why there was no news. At the Planning Commission, the receptionist checked with staff and said that, yes, Cemex had filed an appeal and I could check with the clerk at the Board of Supervisors across the street at the Hall of Records. The BOS receptionist said that Cemex had filed an appeal on June 12 and the hearing was set for Aug. 28 in the Fresno County Ballroom, on the first floor of the old Del Webb Building at 2220 Tulare St.
The Aug. 28 hearing may not be the final battle. It could be followed by lawsuits from either side, depending on the hearing’s outcome. Some locals have talked of nonviolent direct action if the Board of Supervisors overturns the Planning Commission’s denial. So the effort to save Wa-ha-lish may be a long way from over.
Geologist and activist Dr. Merrill says locals will need to achieve two goals to prepare for the Aug. 28 hearing: 1) lots more people must attend than attended the Feb. 9 hearing (about 400) and 2) each public commenter must prepare good arguments based on the final Environmental Impact Report, which is available at the Fresno County Web site: www.co.fresno.ca.us/departmentpage.aspx?id=4322.
Many of the comment letters (see the bottom of the Web page cited above) are very good and can be easily turned into good presentations.
Local attorney Patience Milrod told me recently, “We have to win every time. They [Cemex] have to win only once, and Wa-ha-lish will be scarred forever.” We’ve got our work cut out. We are tired, but we must do this. We can do this. We will do this.
Chip Ashley is a member of the Sierra Club and local activist on issues of the environment, environmental justice, social justice and city and regional planning. Contact him at 559-855-6376 or email@example.com.