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Legislative and Regulatory Update - August 2014 (Vol. 83, No. 12)
Legislative and Regulatory Update
by Scott Harn
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• No Adventure Pass needed
In May 2014, US District Court Judge Terry Hatter Jr. ruled the “Forest Service is prohibited from charging a fee solely for parking.”

This case involved the Cleveland, Angeles, Los Padres and San Bernardino National Forests. The Forest Service was charging $5 per day or $30 for an annual pass.

A lawsuit was filed by four hikers who were required to pay for an “Adventure Pass” even though they were only going to park their vehicles and hike. They had no intentions of using any of the amenities, such as bathrooms or picnic tables.

In 2012, the same four hikers sued the Forest Service for requiring a payment to park within the Coronado National Forest in Arizona. The 9th Circuit Court ruled in favor of the hikers, stating that no payment was required for merely parking within a National Forest.

The Forest Service reportedly scaled back the number of sites where it required purchase of the Adventure Pass in some California National Forests, but it refused to take down signs that declared the pass was required and to apply the 9th Circuit ruling throughout the public lands they administer.

In the latest case, Judge Hatter ruled that charging a fee to those who do not use “developed facilities and services” is in violation of the Federal Lands Enhancement Act.

Miners and prospectors have dealt with these same issues when parking within National Forests to access their mining claims or to search for new prospects. Those who refused to pay to park risked receiving a citation. This latest ruling confirms that no payment is necessary.

The Forest Service released a statement declaring they were “evaluating” the decision. The agency has sixty days to file an appeal.

• Supreme Court of Canada rules on aboriginal title claims
To say that resource development in British Columbia has gotten complicated might be the understatement of the year.

On June 26, the Supreme Court of Canada ruled the T’silhqot’in First Nation was entitled to a piece of disputed land in British Columbia. Some followers of the case expected this outcome, but what they didn’t see coming was the written decision which stated that consent from First Nations is necessary in nearly all land use decisions in the province, and future title claims won in court could shut down development currently under way.

Aboriginals are claiming they should be given title to over 100% of the Canadian province—the total is “over 100%” because some of the title claims are overlapping.

The Supreme Court of Canada ruled that “aboriginal title...extends to tracts of land that were regularly used for hunting, fishing or otherwise exercised effective control at the time of assertion of European sovereignty” in the mid-1800s. This opens up the entire province to aboriginal title claims.

The court stated business and government “must obtain the consent of the aboriginal title holders,” including lands where title is currently being disputed, except in limited circumstances where the government can prove that attempted negotiations failed or there is “a compelling and substantial objective.”

Several First Nations wasted no time in taking action following the order. Gitxsan First Nations already served notice to logging companies, sport fishermen and CN Rail lines to vacate an area of over 20,500 square miles by August 4, 2014.

Another First Nations group announced their intent to sue in federal court to reverse the recently approved Northern Gateway pipeline.

And a third group has claimed title to a currently closed hospital in Vancouver because it is in their traditional tribal territory.

Mining companies—along with other resource-based industries—that have not already completed agreements with First Nations might be hard pressed to obtain them now without making huge concessions.

On a more positive note, the Supreme Court of Canada followed up with a ruling favoring resource development in Canada’s other provinces.

On July 11, the court ruled the government in Ontario could continue to issue permits for logging, mining and other resource development. Canadian provinces, with the exception of British Columbia, are covered by various treaties and much of the land was “ceded to the Crown.” While the government must continue to consult with Aboriginals, provinces outside of British Columbia are not subjected to the same title claims.

• No agreement reached in suction gold dredge permitting case
On June 24 & 25, 2014, plaintiffs, defendants and attorneys attended mandatory settlement hearings in San Bernardino, California.

Judge Gilbert Ochoa met with the involved parties individually and in small groups in his chambers in an attempt to reach an agreement over the suction gold dredge permitting process and the current regulations. These hearings were not open to the public.

The bottom line is that there was no agreement. Honestly, we didn’t expect an agreement to be reached. The State of California and environmental extremists want dredgers out of the water, but miners are not about to give up their rights.

The next step is for Judge Ochoa to rule on the merits of the case—at least that was supposed to be the next step. However, he has thrown another monkey wrench into the process. Judge Ochoa continued the hearing until September 4, 2014. He ordered the involved parties to go through the new dredging regulations established in 2012 and address each point individually, then present their negotiating points to the court.

We obviously have a problem with this approach, and you can rest assured the miners and their attorneys do also. The 2012 regulations were based on bogus science, and I use the term “science” loosely. They were designed to promote an ideology. With the help of environmental groups, the California Department of Fish & Wildlife inserted countless roadblocks into the 2012 regulations to keep dredgers out of the water. For example, they closed over 600 gold-bearing waterways to suction dredging, but claimed the closure was offset by the opening of waterways in other areas. The newly opened waters are at snow-level elevations with an operating season of September through January, and they are in areas that contain little or no gold. Nice try.

Other unworkable portions of the 2012 regulations include:

—prohibiting dredging within three feet of any bank, which eliminates many smaller waterways and puts much of the gold out of reach on larger waterways;

—limiting dredge permits to 1,500 per season, which takes away the rights of thousands of dredgers;

—filling in all dredge holes, which nature does naturally—often within one season;

—outlawing the use of winches without prior approval for each use, creating a dangerous work environment;

—limiting nozzle sizes to four inches, which makes production unprofitable in many situations;

—requiring 500 ft. between dredges, which creates conflict between dredgers on adjoining claims;

—reporting finds by dredgers along with their locations, which would be an invitation to all crooks to come take your gold;

—limiting working hours from 10am to 4pm, which could make dredging unprofitable; and

—requiring complete mitigation, which included things like noise and aesthetics that are impossible to achieve.

We could go on for many more pages, but what is the point? The 2012 regulations were crafted to prevent dredging, not to reasonably regulate it. In our view, using the 2012 regulations instead of the 1994 regulations as a starting point is purely a delay tactic. Nothing in the 2012 regulations is negotiable—it all needs to be tossed out. But why would the judge be delaying this case?

Following are a couple of interesting side notes that might provide the answer.

A related case involving Brandon Rinehart is before the Third Appellate Court. Rinehart is a suction gold dredger, and he operated with a permit up until the time that the State of California stopped issuing permits. Unable to obtain a permit, he continued dredging in protest. On June 16, 2012, he was cited for dredging without a permit on his own federal mining claim.

Rinehart pled guilty while retaining his right to appeal. He was fined $832 and given three years probation. Attorney James Buchal is handling the appeal. In his opening brief, Buchal explained, “...the central, pivotal issue is the question of whether federal mining laws preempt state laws prohibiting and regulating suction dredge mining...”

Buchal did an excellent job of laying out the facts and backing Rinehart’s position with federal laws and established case law in the 38-page opening brief and subsequent reply briefs.

The usual suspects—the Karuk Tribe and the Center for Biological Diversity—filed amicus curiae briefs in support of the State of California. The Pacific Legal Foundation and Western Mining Alliance joined, filing amicus curiae briefs in support of Rinehart.

This issue of federal preemption is scheduled for oral arguments on Monday, September 15, 2014.

If the Third Appellate Court rules in favor of Rinehart, Judge Ochoa would have to rule the same way. It may be that Judge Ochoa is simply delaying a ruling in San Bernardino until the Rinehart case is settled.

We also have to remember that Judge Ochoa is an elected official trying to walk a tightrope, with government officials and powerful environmentalists on one side, and miners supported by current laws and case law on the other. I don’t pretend to know what Judge Ochoa’s aspirations are, but I’m sure he is well aware that his career could be riding on how he handles this decision.

Here is a link to the Third Appellate Court case file for Brandon Rinehart, which includes links to the briefs and related documents.

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