On March 25, 2016, Judge Mark Clarke ruled the State of Oregon can prohibit the use of motorized equipment for instream mining in the name of environmental protection. (Bohmker v. State of Oregon, US District Court, Medford, Oregon, 1:15-cv-01975-CL.)
Judge Clarke stated his decision is not in conflict with the 1872 Mining Act because there is no language in the Mining Act or elsewhere that requires mining to be profitable, and miners are welcome to continue mining with non-motorized equipment.
This decision follows a disturbing trend where judges defer to state and federal agencies regarding what constitutes “reasonable” regulation. And it could very well have a negative impact on the People v. Rinehart case, which is currently under consideration by the California Supreme Court. That case involves federal preemption of state laws and will decide whether or not California can require permits for suction gold dredging—a mining method allowed under federal law—yet refuse to issue such permits.
But before you throw your hands up in disgust and walk away, take a minute to read our “MMAC & PLP Update” in this issue. In that article we lay out the path to getting this situation fixed. We found many sympathetic ears and overwhelming support in Congress during a recent trip to Washington, D.C., and I think your spirits will be lifted again.
• Bill to halt sage grouse management plans introduced
Rob Bishop (R-Utah), Chairman of the House Natural Resources Committee, has introduced HR 4339, “The Greater Sage Grouse Protection and Recovery Act of 2016.” The bill would give governors the power to reject parts of the federal sage grouse management plans that call for mineral withdrawals or are otherwise inconsistent with state plans.
Chairman Bishop was joined by fourteen co-sponsors.
In the meantime, the Department of Interior is trying to complete their list of areas to withdraw from mineral entry so the agency can publish those withdrawals in the Federal Register in the next few months.
Back in September 2015, the Department of Interior declared that an Endangered Species listing for sage grouse was not warranted, then followed up with an announcement that millions of acres across the Western states would be considered for mineral withdrawals to set aside habitat.
Six lawsuits have already been filed against the Interior’s sage grouse plans and more are expected. The American Exploration and Mining Association stated they are working with Mountain States Legal Foundation and will add their name to the list of plaintiffs soon.
December 2010 On Tuesday morning, August 26, 2010, my clients Michael and Linda Backlund were forced to plead guilty to a charge of violating 36 CFR §261.10(b), which criminalizes maintaining a residence on Forest Service land without authorization “when such authorization is required.” This is a new regulation pursuant to which virtually anything, even a tent, is an unlawful “residence” unless authorized in advance.