Scraping Isn’T Mining County Planning Commissioner, Neighbor Can Go Ahead And Sell Topsoil, Judge Rules

Shoshone County planning commissioner Dick Rifkind was in a place Monday he never imagined being: in court, accused of violating a zoning ordinance that he wholeheartedly had approved.

Rifkind and neighboring landowner John Lambrose are selling 265,000 cubic yards of topsoil. The state considers scraping and moving that much dirt - by one estimate, 13,000 truckloads - to be a surface-mining operation.

But to the relief of the two landowners, 1st District Judge Craig Kosonen ruled that the project is not “mining” as defined by county ordinance. Instead, he concluded, it is an agriculture practice that’s OK in rural residential areas such as theirs.

“This is not like a rock pit or a gravel pit that would be visited and revisited,” Kosonen said. “This is a six-month project.”

The county’s lawyer argued that the decision would set a terrible precedent.

Rifkind said after the ruling that he was astounded anyone would consider what was happening on his land to be a mining operation. He was among the planning commissioners who drafted a 1998 ordinance that was prompted by citizen complaints. Noisy, ugly rock pits were popping up around the county, including one not far from Rifkind’s tree nursery along the Coeur d’Alene River.

The ordinance, ultimately approved by the county commissioners, went beyond rock pits to include topsoil, building stone and clay.

“I was one of the people who said, `We can’t have some guy scraping topsoil down to bedrock.’ I’m still concerned about that,” Rifkind said. “There’s a difference between mining topsoil and prepping a field.”

Kosonen said the ordinance is ambiguous. His decision was influenced by landowners’ assurances that the property would return to farmland. He also noted the existence of a reclamation bond that will be used to repair any environmental damage.

But county attorney Mike Brantstatter said, “Those with the money to get bonded can proceed with a violation of the ordinance.”

Kosonen did not fault the county for pursuing the case. When planning administrator Ken Hicks got an application requesting a permit for surface mining in the wrong zone, he said, “Mr. Hicks did what any red-blooded American planning commissioner would do, and immediately rejected it.”

The permit request was filed by Meckel Engineering, which works for IT Corp. The Washington contracting company won the bid to complete the last major project at Kellogg’s Bunker Hill Superfund site: closure of the Central Impoundment Area, a 260-acre pile of mine tailings.

Other contractors were astounded when IT Corp. submitted the winning bid of $11.4 million. The Army Corps of Engineers had estimated that the job would cost $28 million, in large part because of the cost of buying topsoil and hauling it from out of the county.

IT Corp.’s subcontractor, CJS Excavating, found a much closer source in the floodplain farmland along the North Fork. Rifkind said CJS owner, Cal Evans, approached him last January about selling topsoil, which reportedly is eight to 10 feet deep in that spot.

That fit well with Rifkind’s long-held hope of growing wild rice on what is now a 35-acre unproductive hayfield. By scooping out and selling 18 inches of topsoil, he could make enough money to build dikes and create a rice paddy.

Lambrose liked the idea of making his hayfield flatter and easier to till. He also wanted to plant wild rice in the sloughs, or wetlands, to attract wildlife. He was also surprised when the mining permit issue arose.

Plans call for removing about 18 inches of soil from 85 acres.

Heavy equipment began scraping away weeks ago on the Lambrose property. But it wasn’t until last Tuesday - when Hicks photographed trucks leaving the property - that it was officially considered a commercial operation. That’s when Hicks asked the judge for a temporary restraining order, in hopes of getting a permanent injunction to stop the project.

Hicks said oversight of the project is now entirely up to the Idaho Department of Lands, which issued a permit on May 1.

Lands Department resource manager Jim Brady testified on Thursday that the project was unquestionably a mining operation. He wasn’t available for comment Monday.

Kosonen said he was only approving the project as approved by the state permit. “I want everyone to know I’m not giving out a license to kill,” he said.

Lambrose said he had no plans to sell more soil after this is over. “What I’m trying to do is increase the value of my property,” he said.

Rifkind said it’s possible that he might have to scoop out more topsoil if future floods deposit on the land, as happened in 1996.

Asked when he expects to start excavating Rifkind’s land, Evans said “tomorrow.”

“I’ve got to get going. I’m too happy to stand here,” he said after the judge’s ruling. There are 25 workers on the job, he added, “and they’re all on standby.”