Cemex argues against newfound jurisdictional argument

A car drives past the Cemex mining site as scene from Soledad Canyon Road near Agua Dulce Canyon Road in Canyon Country. Dan Watson/The Signal

Cemex, the international mining company proposing a massive sand and gravel mine on Santa Clarita’s eastern border in Soledad Canyon, is fighting back against a new question raised on the court’s subject-matter jurisdiction in its legal challenge to the federal government’s termination of its mining contracts. 

The defendants — the U.S. Department of the Interior, Interior Board of Land Appeals and the Bureau of Land Management — recently asked Judge Carl Nichols to dismiss the matter or move it to a federal claims court because the legal dispute, dating back to May 2019, is about Cemex’s mining 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. In 1990, Cemex was issued contracts to mine 56 million tons of sand and gravel just outside in Soledad Canyon. Since that time, the city of Santa Clarita has fought to prevent the work, spending at least $12.5 million. 

“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. 

Nichols granted Cemex last month an extension to respond to the newfound jurisdictional argument until Jan. 8. The extension was due to the holidays and the fact that an attorney for Cemex tested positive for COVID-19. 

Cemex has now responded and argued that the court “should reject defendants’ newfound jurisdictional argument, grant CEMEX’s motion for summary judgment, and deny defendants’ cross-motion,” according to the response filed Friday. 

Attorneys for the plaintiff argue that citing the Tucker Act “fares no better than their merits arguments for two basic, and independent, reasons.” 

First, they argue, a federal claims court lacks jurisdiction either to hear challenges to IBLA decisions or to entertain constitutional due process claims. 

“Without such power, the Tucker Act cannot conceivably displace this court’s jurisdiction under the APA (together with 28 U.S.C. § 1331) to review and remedy unlawful agency action,” read the response. The APA, or the Administrative Procedure Act, governs the process by which federal agencies develop and issue regulations, according to the U.S. Environmental Protection Agency. 

Cemex attorneys also said that neither the rights invoked, nor the remedies the company seeks, render the matter a Tucker Act case, which they argued is only triggered when a case is founded solely on a contract and without implicating a statute or the Constitution.

“It is not triggered by the mere presence of contractual questions, or by a request for injunctive relief to remedy constitutional injuries even if that relief is the equivalent of specific performance of a contract,” read the response. 

Attorneys for the plaintiff added that Cemex is not requesting any monetary damages, but rather “declaratory and injunctive relief” to remedy violations by the defendants. The violations they cite contend that Cemex did not receive a fair notice and due process in reviewing a decision that the IBLA “unlawfully” concluded that the production period in Cemex’s first contract began in 2000 and that BLM could retroactively terminate the company’s rights and hand it a bill “for tens of millions of dollars —- despite dozens of agency statements to the contrary over the course of decades.” 

As of Tuesday, future hearings appeared to have yet to be scheduled. 

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