Thursday, March 4, 2021

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Cortina Landfill Lease Terminated by BIA

After more than a decade of diligent battle by the Colusa County Board of Supervisors on behalf of the county and its residents it appears the proposed and strongly county-opposed landfill at the Cortina Rancheria has been stopped.

Colusa County outside Counsel Tim Taylor of Stoel Rives, LLP brought the news at the Oct. 22 Board meeting. The Bureau of Indian Affairs (BIA) has recently terminated the lease between Cortina Integrated Waste Management Inc. (CIWMI) and the Cortina Band of Wintun Indians. Initially CIWMI’s, (a subsidiary of Earthworks Industries, a Canadian business) intent was to construct and operate an integrated waste handling facility on 443 acres of the Rancheria in Colusa County. The Class III, municipal waste landfill, would be located approximately 85 miles north-east of San Francisco and would have an approximate disposal capacity of 16 million cubic yards of waste.

The landfill would have encompassed approximately 200 acres of the 443 acres leased and increase from an initial 300 tons per day (TPD) of disposal to 1500 TPD. The initial lease of 25 years, renewable for 25 years, also allowed for future material recovery, composting and bio-remediation.

The U.S Department of the Interior, Bureau of Indian Affairs, issued a final approval of the lease in January 2007.

Termination of the lease puts a stop on the project which has been and continues to be opposed by the County and by residents here – especially the residents on Spring Valley Road, the road which would have been most impacted by the truck traffic from the landfill which would be located at the end of that road.

“The implication of the landfill developing at the end of Spring Valley Road was considerable for the county and for its residents,” said Taylor. “The county became involved later than it should have if the Federal Government had done what it was supposed to do and brought the county in,” said Taylor. – But the county still got involved when early on it addressed the absence of an environmental review under the Environmental Policy Act (NEPA) and really dealt pretty aggressively with the BIA in terms of holding its and other federal agencies’ feet to the fire demanding compliance with federal environmental statutes.

Taylor said the secondary component in all of this is that the California Environmental Quality Act wouldn’t normally apply on tribal land but in this instance it did because the road needed to access the site would need significant improvement because of the associated increase in traffic.

Both national and state environmental review resulted in a number of objections by the CIWMI and the BIA. The county filed a federal lawsuit early on which resulted in a settlement and mediation process. “The county’s eight to nine year process concluded with parties standing down and the landfill project not going forward for a number of reasons,” said Taylor.

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Additionally Taylor said the federal government advised there would be a need for additional rounds of permitting from the EPA and BIA before the project could come to fruition. This would mean a much longer road for completion.

When this first began it appeared that it would be a quick and dirty, easy thing to get approved and up in running in a couple of years. But as the process went on and the county continued to fight for the rights of the county several things happened.

Recently a contested issue between Earthworks and North Bay, one of the financial participants who had joined forces to get the project through brought a legal action which resulted in CIWMI/Earthworks owing substantial dollars to North Bay. Taylor said it appears that Earthworks didn’t make good on some payments to North Bay.

That is when BIA stepped in to inform CIWMI/Earthworks that its lease would be terminated for failure to abide by terms. CIWMI/Earthworks missed a payment on a $6 million settlement.

Although the lease has been cancelled, CIWMI/Earthworks has the option to seek higher review with the Interior Board of Indian Appeals (IBIA) appellate review body.

Colusa County appeared at the IBIA years ago and ended up with a settlement after the federal lawsuit. After working toward environmental review, the county entered into an agreement with CIWMI for reimbursement of any and all costs the county expended on its environmental review and analysis including legal fees and consultants.

Supervisors Kim Vann and Mark Marshall have served on a sub-committee with Taylor and Colusa County Counsel Marcos Kropf to address the issues on the Cortina Landfill project.

At the Oct. 22 meeting Marshall moved to authorize outside counsel to intervene, or participate as Amicus Curiae in the appeal by CIWMI of the cancellation of the lease for the proposed landfill site in Colusa County.

“For more than 13 years this has been a personal fight for me not only because the proposed project is in my district, but because of the potential environmental impacts. It would be devastating on groundwater and aquifers providing water to the city of Williams, the town of Arbuckle and a western portion of Colusa County,” said Marshall. “I think I would be remiss if I did not continue the fight. For that reason I would vote to give outside counsel authorization to intervene on behalf of the county.”

Vann seconded the motion with comment. She confirmed with Taylor that if the cancellation of the lease was upheld the project proponent’s only next remedy would be to go to federal court and that the BIA would be represented by the Solicitor General.

The board voted 5-0 to approve the motion.

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