What happens next? Buckingham commission weighs mining question

DILLWYN – After several months of discussion and presentations, the Buckingham County planning commission is set to decide what happens next in terms of gold mining. During next Monday’s meeting, group members will determine if they need to hear more testimony from additional sources or if they’re ready to make a recommendation to supervisors about a path to take. 

“You’ve got four options, as I see it,” said Buckingham County Attorney E.M. Wright. Speaking to the commission during a special Monday, May 15 work session, Wright gave a legal presentation and addressed what exactly the commission could do. 

“You could (give a recommendation) to ban mining,” Wright said. “You could ban metallic mining. You could make adjustments to current ordinances (or) not change anything at all.” 

The county’s authority on mining

The main argument Wright wanted to get across is that Buckingham County can’t just do whatever they want. Virginia is what’s known as a Dillon Rule state. That means cities, counties and towns only have the powers expressly granted to them by the state. 

“It’s called the supremacy clause,” Wright said. “It establishes the pecking order. We are not the high man on the pecking order. You can’t just do anything you want to. It can’t be in conflict with what the state and the feds say you can do.” 

He pointed out that it’s been tested before. In 1999, a group of Amelia County farmers sued the county, arguing that a local ordinance against using biosolids (aka sludge) as fertilizer went against state law. They pointed out the state has no ban on the concept, in fact it’s been used for more than a century. The farmers argued Amelia County couldn’t have rules in place that ban something the state allows. A judge agreed, stating that a local government may not forbid what the legislature has expressly licensed, authorized or required. In other words, a local ordinance may not conflict with state law. 

In this case, “the state is really in control,” Wright said. “It authorizes what can be done and it’s chosen to license and permit mining in Virginia.” 

That power, he pointed out, goes to the state, since the General Assembly created Buckingham, just as its members voted to create every county in the Commonwealth.

When can they regulate mining?

Now yes, cities and counties can regulate mining. In Article 7, Section 15.2-2280, the Virginia Code says that any city or county can “regulate, restrict, permit, prohibit and determine” what to do in four situations. The fourth is very clearly identified as “the excavation or mining of soil or other natural resources.”
But it’s how this happens officials have to be careful about. While a county like Buckingham can’t just outright ban the concept, they can restrict what is and isn’t allowed through zoning ordinances. 

Wright’s comments echoed what Joe Lerch told the state gold mining workgroup back in September. Lerch, who serves as director of local government policy for the Virginia Association of Counties, explained last September that counties can decide what is and isn’t allowed in zoning. 

“In a zoning ordinance, you can say that this is not allowed activity,” Lerch told the group. “Or you could say it is allowed in (a certain) type of district, like an industrial district, with a special use permit. If you want to say we don’t even want to consider it, that could be in your ordinance too.”

Why have this debate?

So why is this debate happening in Buckingham County? It stems from a situation that started more than two years ago. In April 2019, the Canadian prospecting company Aston Bay Holdings announced they were beginning to search for gold in Buckingham.

To be clear, Aston Bay isn’t a mining company. It’s a prospecting company. That means they search for gold, silver or other minerals, identify and purchase a location, then sell that information (and property) to the highest bidder. They can do this because under Virginia law, prospecting doesn’t require a state permit if you’re searching for anything other than uranium.

In statements given in March 2019 and July 2020, company officials declared their drilling confirmed a “a high-grade, at-surface gold vein system at Buckingham, as well as an adjacent wider zone of lower-grade disseminated gold mineralization.” In other words, they found enough to keep going. At the beginning of 2020, the company secured the right to prospect on 4,953 acres of land in Buckingham County.

Just don’t expect a gold mine to spring up anytime soon or even a request to build one. In an interview earlier this year with The Herald, Aston Bay CEO Thomas Ullrich said the company was “still in the early stages of exploration.”

“We have conducted only preliminary exploratory drilling on the local landowners’ properties at Buckingham, and none for the past two years,” Ullrich said. “We have several quality potential projects, but a limited amount of funds. Over the last year and a half, we have been investing in the landowners in another county. We look forward to investing in Buckingham again.”

What happens now? 

So, now what? Well, the planning commission has a decision to make. 

“At the end of next week’s regular meeting, we can decide if we need to hear other speakers,” said Planning Commission Chairman John Bickford. “Our next step would be to do that and decide on a work session.”

That next meeting is set for Monday, May 22, beginning at 7 p.m. 


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