Cemex case moves to ’21; attorney tests positive for COVID-19

The yearslong court battle over contracts of Cemex, the international mining company proposing a massive sand and gravel mine on Santa Clarita’s eastern border in Soledad Canyon, is moving into 2021, as the parties continue disputes and deal with COVID-19-related delays.

An attorney for the plaintiff tested positive for COVID-19 — and due to the holidays, a California district court judge granted Cemex an extension Dec. 8 to better enable the company to prepare its reply to a new question raised by the defendants: the U.S. Department of the Interior, Interior Board of Land Appeals and the Bureau of Land Management.

“This proposed date (Jan. 8) is reasonable in light of the fact that the issue that has been raised is both important and entirely new, and to accommodate the schedule of counsel during the upcoming end-of-year holiday period, and because one of plaintiff’s counsel is unfortunately currently COVID-19 positive and symptomatic and requires time to recover,” read a motion granted by Judge Carl Nichols.

Attorneys with both Cemex and the federal government did not respond to requests for comment. Cemex has until Jan. 8 to respond to the new question raised on the court’s subject-matter jurisdiction.

The defendants have suggested Nichols dismiss the case or move it to a federal claims court because the legal dispute, dating back to May 2019, is over Cemex’s contracts. The lawsuit seeks to invalidate the Interior Board of Land Appeals’ March 2019 ruling that the

company’s mining rights in Soledad Canyon expired at the end of July.

“Under the Tucker Act, only the U.S. Court of Federal Claims is authorized to adjudicate this case and therefore, this court should either dismiss this action or transfer it to the U.S. Court of Federal Claims pursuant to 28 U.S.C. § 1631,” read another motion filed Dec. 2.

Dismissal unlikely

Andy Fried, president of the local nonprofit Safe Action For the Environment, which has opposed the mine and closely followed the matter over the lengthy dispute, said Thursday he believed the judge would probably not dismiss the case.

“I would be surprised if Nichols did let it go. I don’t know why he would unless, politically, he wants to get rid of it. It would be interesting to see, as we see what happens under the new Democratic administration.”

In the motion, the federal government alleges that “even if this court did have jurisdiction to hear Cemex’s claims,” the mining company failed to show that IBLA “acted arbitrarily or capriciously.”

It is unclear whether Cemex is pushing to reverse the government’s denial of the extension of its second 10-year contract, which expired at the end of July, or if the company’s focus is strictly on the financial impacts of the contract dispute rather than actually continuing to pursue the mine. A year ago, the BLM informed Cemex that the company owed the government more than $25 million in back payments in lieu of production via mining in Soledad Canyon.

There is no activity from the mining company in Soledad Canyon to date, according to city Administrative Analyst Masis Hagobian.

After January, the court is expected to have briefings from both sides and will start the review process, said Hagobian.

“(The review process) could be as fast as 30 days or up to four months and, after that, they’ll start the hearings, but with COVID, I don’t know how this will impact the timeline,” he said, adding that the city will continue to closely monitor the case.

Fried said he expects the matter to continue for another two to three years.