|by Scott Harn
ICMJ's Prospecting and Mining Journal
Suction Gold Dredge Miners WIN on Federal Preemption!
After a nine-year battle, Judge Ochoa ruled that state law cannot preempt federal law by banning the use of suction gold dredges!
There is a lot to cover in Judge Gilbert Ochoa's 22-page ruling issued on January 12, 2015 in San Bernardino, California. I will be writing up an extensive review of the ruling, which will appear in our February 2015 issue. However, I want to provide our loyal readers with a rough summary of Judge Ochoa's ruling:
Judge Ochoa stated:
A suction gold dredge is the only practical method of gold recovery on many federal mining claims
The State of California continues to require permits but refuses to issue such permits
The Department of Fish & Game has been prohibited from issuing permits until certain, legislatively required conditions can be met, and those requirements are not attainable
When state law conflicts with federal law -- in this case by prohibiting suction gold dredging -- federal law prevails
"On its motions for summary adjudication, the Court finds there is no triable issue of material fact on the issue of Federal Preemption and that as a matter of law and in actual fact, that the State's extraordinary scheme of requiring permits and then refusing to issue them whether and/or being unable to issue permits for years, stands 'as an obstacle to the accomplishment of the full purposes and objectives of Congress' under Granite Rock and a de facto ban."
Judge Ochoa went so far as to call the California permit scheme "unenforceable."
I am sure there will be some dredgers who will not wait for those negotiations to be completed before they head back into the water because suction gold dredging provides the means for them to support their families.
Negotiations between the miners, their attorneys, environmental groups and the State of California are scheduled to reconvene on January 23 to work out reasonable regulations. It remains to be seen if that can actually be accomplished.
We all know many of the outlandish claims made by the environmental groups and the State of California were bogus. Dredging has never been shown to harm fish when done properly and outside of spawning seasons.
If you are heading out to dredge, I would strongly suggest you do not provide the opposition with any more ammunition. Dredge responsibly. Continue to follow the 1994 regulations regarding seasonal restrictions to avoid damage to spawning beds and do not dredge into river banks or stream banks. Do us all a favor and continue to properly collect and discard any trash, lead weights, mercury, etc. you recover while dredging. And snap a few photos to document this environmental stewardship -- there may be a time when your photos will come in handy.
You also might want to drop by or call the Department of Fish & Game and tell them you would like to obtain your suction dredging permit. After they deny you that right, jot down the date, time and their name to cover your bases.
As always, be sure to avoid valid existing mining claims.
Let's continue to show that suction gold dredgers are responsible miners.
The Battle is Far From Over
Even as I write this, the environmental groups and the State Water Resources Control Board continue to try and block suction dredge mining.
The Water Board and John Leshy, former head of the US Department of Interior under the Clinton Administration, have sent requests to the California Supreme Court requesting the Court overturn the federal preemption decision in People v. Rinehart. This was a significant case relied upon by Judge Ochoa.
Leshy's letter is actually a little amusing because he tries to compare suction gold dredge mining to hydraulic mining of the 1800's. He is obviously unfamiliar with suction gold dredging equipment and modern mining methods.
We can certainly expect more litigation in our future. We'll keep you posted.
Judge Ochoa's ruling from 01-12-2015
Letter from John Leshy to California Supreme Court 01-07-2015
Letter from State Water Board to California Supreme Court 01-08-2015
People v. Rinehart
California Coastal Commission v. Granite Rock
South Dakota Mining Association v. Lawrence County