KCBX Two-Way: More eviction threats for Monterey County's Cemex sand mine

Jun 14, 2017

Cemex is a Mexican multinational company that manufactures and distributes building supplies in over 50 countries; key Cemex products are cement and ready-mix concrete. The company operates the Cemex Lapis Sand Plant on a beach about eight miles north of Monterey and despite the state closing all the other sand mines operating along the coast years ago, the Cemex mine is different because of its specific location. The company maintains it has a longtime, vested right to operate there, and that those operations are not the cause of beach erosion in the area. 

In March of 2016, the California Coastal Commission sent a cease and desist warning to Cemex. In May 2017, the State Lands Commission ruled that although the mine is operating above the high tide line, it is using natural resources that are considered part of the public trust. And on June 6, the city of Marina - where the mine is located - made a move to start its own eviction process against the mine.

David Schmalz is a Monterey County Weekly senior staff writer who has been closely covering the story for several years. KCBX News spoke with him about the Cemex mine in May, after the State Lands Commission's ruling. Since then, there have been more developments in the story, so KCBX News spoke to Schmalz again about his latest reporting for a story published in the MC Weekly on June 8.

KCBX: Hi David. So what's the latest on the Cemex mine?

SCHMALZ: A couple of big things have happened. I got my hands on a ‘Statement of Defense’ from Cemex through a Public Records Act request, and that is their formal response to the commission's threat in March of 2016 to issue a cease and desist order (CDO). In the Coastal Commission's threat to issue that CDO, they enumerated many alleged Coastal Act violations and said [Cemex has] to mitigate those impacts, or stop doing what they're doing or potentially be shut down. Whomever is allegedly violating the Coastal Act files this so-called ‘Statement of Defense.’ It was a lengthy document - 59 pages - and basically all that it spelled out over many, many pages was Cemex saying “this is a vested right; this is a vested right; this is a vested right.” It also sought to cast doubt on the scientific findings. Numerous studies have been done in the past 20 years, and Cemex seems to be relying on a study from 1972. The coast is a dynamic thing and the nature of the local coastline has changed dramatically in the 40-plus years since then, so I was a little stunned that they were relying on 45-year-old science to defend their claim.

Then on Tuesday night, the Marina City Council voted unanimously to authorize their city attorney to explore legal options that would potentially declare the Cemex mine a public nuisance. This is a completely separate action from what the Coastal Commission's doing - totally different laws apply. It was a big meeting and lots of people were there. Cemex had an attorney who came and tried to defend the operation and say basically, “you did not give us due process.” My understanding from the city is that they are going to wait and see what happens with the Coastal Commission and the State Lands Commission. Now the Coastal Commission is meeting...they are having their monthly meeting at CSU Monterey Bay’s World Theater July 12 - 14. I've been told that July 13 is the day that they are going to address the Cemex issue and everyone's just waiting to see how that's going to go down.

There are basically three options that are going to be presented. One is that they will potentially have reached a settlement by then; they have not reached one up until this point. Always an option is Coastal Commissioners could take no action and decide they don't want to get into this very contentious fight…. or they could ultimately issue a cease and desist order. What happens then is not totally clear, because when they issue a cease and desist order, there are certain conditions that would be in that order and it's impossible to know what those could be at this point. But what would likely happen, if they were to do that, is that Cemex would go to court and seek an injunction against the CDO and the litigation would then begin.

KCBX: Okay got it. Let's back up a little bit, why does Cemex say they have a vested right?

SCHMALZ: Because there has been some form of sand mining on that property since 1906, and the nature of the operation has evolved and right now their current operation is this dredge pond that's been operating on this current location since the mid-1960s. So they argue that all this stuff was in place before the Coastal Act went into effect in the ‘70s. However, the Coastal Commission would argue that [Cemex] didn't have proper permits at the time that the Coastal Act went into effect. In the ‘Statement of Defense’ the most recent county permit [Cemex] includes was from 1964, and it did not explicitly authorize the current dredge pond. 

KCBX: Okay, got it. And how many people work at the Cemex mine now?

SCHMALZ: I've been told about twenty, so that's been an argument that some people put out there - this is just going to kill jobs if [the Cemex mine is closed]. Other people argue that the value of our beaches create a lot more jobs than just twenty people at the sand mine. There's definitely two sides to that argument.

KCBX: Let's talk about that, because you said that a lot of people turned out for this week's meeting. So a lot of people are interested in this. The main problem with this mine is that it's causing erosion so tell me about the climate change aspect of that.

SCHMALZ: The mine is causing, it’s estimated, up to around four feet of erosion a year. And so in the face of sea level rise, that's an even bigger problem. And basically how it works is the beach is just going to keep retreating landward and waves are going to keep eroding the dunes, which will keep getting shorter. That's one of the ways in which the erosion is measured - by the height of the dunes.

KCBX: And there's a lot of property, that is right on the coast there, that could potentially be threatened, is that correct?

SCHMALZ: That is correct. You get down further south into Monterey and the beaches become incredibly narrow. I mean, if it loses any more it's not going to be a beach in Monterey. Also, in that area down by Fisherman's Wharf, during the king tides, it can flood the streets, so there's there's a concern across the whole southern Monterey Bay about the impacts of this mine.

KCBX: What is the science that’s saying that there is beach erosion?

SCHMALZ: There have been numerous studies. There was a study done by the U.S. Geological Survey, I believe it was published in 2006 - it was an assessment of the whole California coastline, and in that study, at that time, it showed southern Monterey Bay had the highest coastal erosion in the state, and specifically around Marina. And Ed Thorton, who is a retired Naval Postgraduate School professor and a coastal engineer world renowned in the field, has done numerous papers on this subject, as have other scientists. And the science is very plain. I talked to - in reporting this last story - a guy named Rob Young, who is the director of the Program for Study of Developed Shorelines, which is a joint program between Western Carolina and Duke universities. And I was basically just asking him, “what do you think of the science and do you think there's any credible reason to doubt it?” And he said, “No, absolutely not, it's definitely credible.” And he said, “if you're going to attack peer-reviewed scientific literature, you need to do it with peer-reviewed scientific literature," and Cemex has not done that.

KCBX: What is happening next in this - I take it it’s the Coastal Commission meeting in July?

SCHMALZ: Yes, on July 13. The Coastal Commission has chosen that day...and I don't know if there's ever been a Coastal Commission meeting at CSU Monterey Bay before, it's definitely one of those things where they're doing it on that day, in that place, for a specific reason. It's in Marina. So we'll see what happens. It's going to be quite a day, I'm sure, and there may be dozens and dozens of people there on this issue.