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Legislative and Regulatory Update

Suction dredging court cases in California linger on
Back in January 2015, Judge Gilbert Ochoa ruled on the consolidated suction gold dredging cases. He ruled that “the State’s extraordinary scheme of requiring 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.”
 
In other words, the State of California cannot preempt federal law with respect to suction dredge mining. The State of California cannot require suction gold dredgers to obtain permits then refuse to issue such permits.
 
Judge Ochoa ordered the prevailing parties—the miners—to “prepare notice and order.” Those documents have been presented to the court. Attorneys representing the State, the Karuk Tribe and environmental groups have filed their response. And we continue to wait.
 
At the time of the ruling, Judge Ochoa stated he was going to issue temporary regulations based upon negotiations with the involved parties. Those temporary regulations have still not been issued.
 
The miners had sought to enjoin the California State Water Resources Control Board in the mandatory settlement conference but Judge Ochoa refused to grant that request. In simpler terms, this means the miners wanted to force the Board to participate in the settlement conference. 
 
The Water Board is made up of appointed members who serve at the whim of Governor Jerry Brown and  it continues to issue rules and regulations related to mercury, water temperature and turbidity. 
 
In the meantime, State Senator Ben Allen, representing the mining-rich district of Malibu (sarcasm intended), introduced a bill to hand suction dredge permitting over to the Water Board. SB 637 would require the agency to create rules to regulate “cumulative and water quality impacts” including bioaccumulation of mercury, methylmercury formation, and mercury loading downstream of suction dredges.
 
Three consecutive Board studies showed no link between suction dredging and increased mercury in our rivers and streams until a 2011 report by Dr. Charles Alpers of the US Geological Survey suggested otherwise. 
 
A subsequent Freedom of Information Act (FOIA) request filed by the Western Mining Alliance revealed that Alpers was not only a member of the environmental group The Sierra Fund, but he also held a position on their Board of Advisors. The Sierra Fund has lobbied legislators for years to ban suction gold dredging. Talk about a conflict of interest!
 
The Western Mining Alliance investigation also revealed that Alpers withheld an additional five years of data on mercury.
 
“That Alpers belonged to an environmental group which was lobbying for the ban seemed a little too convenient,” said Craig Lindsay, president of WMA. “The full data set shows no evidence of linkage. The data shows mercury levels in insects have increased significantly since the ban was imposed,” he added.
 
The bottom line is that the Board continues to rely on the faulty data in an attempt to restrict or eliminate suction gold dredging in California. It should be obvious why we do not want the Board in charge of dredge permitting.
On April 14, 2015, Shannon Poe of the American Mining Rights Association traveled to Sacramento to offer expert testimony on SB 637 at a hearing in front of the California Senate Committee on Natural Resources and Water.
 
“As expected, the sponsor of the bill, Senator Allen, was allowed to present testimony on mercury, but when it came time for the small miners, we were told it would have to be presented at another committee hearing,” wrote Poe following the hearing. “Basically, we were not allowed to present all of the facts, science and truth as it pertains to suction dredging… almost like this was a predetermined outcome. We did vocalize quite a bit of information which obviously captivated them and made them think very hard. In the long run, this bill passed 6 to 2 (6 Democrats for, 2 Republicans against).
 
“This bill is not done yet. It will now go before the water resources (or similar) committee and we will be there in two weeks to provide testimony on your behalf again. We do not give up.”
 
Poe estimated about forty miners joined him at the hearing to show support. But when the official summary of the hearing was released it listed six environmental groups in support of the bill and “one individual” as opposed.
The battle to restore suction gold dredging is also underway at the California Supreme Court. In People v. Rinehart, a lower court would not allow Rinehart to argue that federal law preempted state law when he was cited for suction gold dredging on his federal mining claim without a permit. The California Court of Appeals ruled the lower court erred and the court published their opinion after hundreds of miners sent in a request for publication.
 
When a court opinion is published, other courts are allowed to utilize that opinion in their decisions. Judge Ochoa relied, in part, on the Rinehart decision issued by the Court of Appeals when he ruled in favor of the miners back in January.
 
The State of California filed an appeal with the State Supreme Court in an attempt to get the Rinehart decision “depublished” to prevent it being utilized in other cases. Written arguments have already been presented by State attorneys, and by James Buchal, who is representing Rinehart.
© ICMJ's Prospecting and Mining Journal, CMJ Inc.
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