COURT OKS CEMEX MINE DEAL ATTORNEY FOR SANTA CLARITA SAYS OPTIONS BEING REVIEWED.

Byline: Judy O'Rourke Staff Writer

SANTA CLARITA - One of the city's pivotal bids for scaling down the 56.1 million-ton gravel mine planned in Soledad Canyon has been hammered by a federal appeals court decision that upholds an agreement allowing the mine project to proceed.

In a ruling issued Friday and announced Monday, the 9th District U.S. Circuit Court of Appeals said a consent decree between the county of Los Angeles and Cemex Inc. allowing for the mine was negotiated in good faith and is ``fundamentally fair, adequate and reasonable.''

Attorneys for the Mexico-based conglomerate were delighted.

``Cemex is gratified that the 9th Circuit Court of Appeals, in reviewing the record in this matter, has recognized the great effort by Cemex, the county and the United States to try to settle their legal differences in a manner that allowed the county to retain its environmental authority, allowed the U.S. to proceed with its mineral material sales program and which allowed Cemex to pursue its Soledad Canyon project,'' said Kerry Shapiro, the lead attorney for Cemex's Soledad Canyon project. ``The court recognized the settlement was fair to all parties.''

Cemex spokeswoman Susana Duarte said the company hopes to ``be able to move forward in planning for production as soon as possible. We still have numerous hurdles we hope will be resolved in a timely manner. We are open and willing to work with the community and our neighbors.''

Attorney Debra Prosser, who represented the city, said the decision was disappointing, but stopped short of saying what comes next.

``We are reviewing all of our options as to how we're going to respond to this,'' Prosser said Monday.

The proposed mine is in county territory between Canyon Country and of Agua Dulce, but the city has battled it claiming it will pollute Santa Clarita's air and add heavy truck traffic to local roads.

Attorneys for the city and Cemex had presented arguments to the appellate court Feb. 7. The city claimed the consent decree was invalid because it contained a finding of pre-emption of state and local authority by the federal government that is not authorized by law.

Cemex was granted the mining rights by the Bureau of Land Management in 1990. The county had rejected the mine, but conceded when Cemex filed a lawsuit in federal court. County supervisors granted the mining permit in June 2004 under a court-approved consent decree.

The city appealed the decree, claiming it and the environmental impact report violate the California Environmental Quality Act, the federal Clean Water and Clean Air acts and the National Environmental Policy Act.

In October 2004, the state Attorney General's Office filed a friend-of-the-court brief in support of the city's stance, questioning the legality of the consent decree. The brief argued the settlement between Cemex and the County could hamper state and county enforcement of environmental laws. The consent decree says the county cannot ``interfere with, conflict with, or otherwise frustrate or impair'' the agreement with Cemex.

The attorney general argued the provision would undercut the county's enforcement of environmental laws and right of free speech.

``We respectfully disagree with the court's ruling,'' Tom Dresslar, a spokesman for state Attorney General Bill Lockyer's office said Monday. ``I think the county settlement surrendered too much of its regulatory authority over the mine. We think the provisions of the consent decree, some of them, were overly broad and unconstitutional.''

Dresslar went further.

``The Bush administration intervened in this action; it took the position the federal government's contract with Cemex trumped California laws to protect the environment,'' he said. ``That's a dangerous precedent. We hope the Bush administration or the federal government refrains in the future from taking a position that California's environmental protection laws take a back seat to its contracts with private parties.''

In January, a federal judge rejected the city's claims that the BLM and the Interior Board of Land Appeals failed to perform sufficient environmental analysis before approving the mine. In the lawsuit, the city raised claims under NEPA, the Clean Water Act and several federal mining laws. The city is appealing the decision.

An appeal filed in December for a case lodged under the Endangered Species Act is pending. In a November ruling, the court sided with the U.S. Department of the Interior, the U.S. Fish and Wildlife Service and Cemex.

Cemex filed a lawsuit in state court in December, challenging an environmental review in the city's plan to annex 1,885 acres, which includes the area where the mine is proposed.

Judy O'Rourke, [phone]

judy.orourke(at)dailynews.com