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Legislation & Regulation

Legislative and Regulatory Update

June 2015 by Scott Harn

• California dredging update

On May 1, 2015, Judge Gilbert Ochoa finally signed an order following his January ruling that state law cannot preempt federal law. In other words, federal law allows reasonable regulation of mining, but the State of California cannot prohibit suction gold dredge mining by requiring a permit and then refuse to issue such a permit.

Some of our readers have gone back to suction gold dredging. Some have also said they carry a copy of Judge Ochoa’s January decision so they can present it to any law enforcement officer who might try to issue them a citation for dredging without a permit. Most have said this has worked—once the law enforcement officer is politely educated, he or she has left the miner alone.

A few suction dredge miners have been cited and I’m aware of one who had his equipment confiscated as well. (These miners did not have a copy of the court decision with them, so I do not know if it would have made a difference.)

Judge Ochoa has been made aware that he needs to do more. He needs to put something in writing to give suction gold dredge miners relief and attorneys representing the miners are continuing to meet with the judge to work through this process.

In the meantime, I suggest all suction gold dredgers take a look at the article on page 39 titled, “Direct and Constructive Notice.” This process can be followed by dredgers throughout the West to ensure regulators follow the law and it is the first step in suing a government employee personally for violating your rights.

Meanwhile, up in Siskiyou County, New 49’ers attorney James Buchal filed for a restraining order to prevent law enforcement in that county from issuing citations and/or confiscating equipment. The State of California immediately filed papers to get the restraining order case moved to San Bernardino to Judge Ochoa’s courtroom. Judge Ochoa has granted the State’s request.

Buchal has met with Judge Ochoa and they continue to try to work through the question of relief for the miners.

“...I believe that, thanks to the pressure of the New 49’ers and their members, we have finally convinced the Judge that he needs to address the question of relief, and that we have a reasonable chance of getting him to act on his ‘temptation’ and grant us the relief,” said Buchal.

• Favorable bills in Congress

HR 1732, the Regulatory Integrity Protection Act of 2015, would require the Army Corps of Engineers and the EPA to withdraw their current proposal to expand their jurisdiction to non-navigable waters.

S 1140, the Federal Water Quality Protection Act, is a similar bill in the Senate that would require the Corps and EPA to exclude isolated ponds, ditches, agriculture water, storm water, groundwater, and similar waters from their definition of “Waters of the United States.”

A Senate budget amendment included language to delay the EPA from implementing a new definition of navigable waters. The amendment passed (59-40). And the House released their appropriations bill,which prohibits funding for the EPA to write or issue a new definition of waters, and prohibits the Corps from changing the definition of “fill material” and “discharge of fill material.”