Legislation & Regulation

Legislative and Regulatory Update

June 2013 by Scott

• Two million acres of proposed habitat
On April 25, 2013, the Fish & Wildlife Service published a proposed rulemaking in the Federal Register to establish over two million acres of critical habitat for the yellow-legged frog, the mountain yellow-legged frog, and the Yosemite toad in California and Nevada.

The listing is the result of another settlement agreement Fish & Wildlife made with the Center for Biological Diversity, a group that has petitioned the agency for the addition of hundreds of species to the Endangered Species Act.

Beginning in the 1850s, settlers in California began stocking trout in lakes at higher elevations, and the state of California took over the fish stocking program in the 1920s. You can guess what happened—these non-native trout consumed large populations of yellow-legged frogs and four different scientific studies confirmed that the trout were obliterating the frogs and isolating populations of frogs from each other.

Experiments were conducted in 2001 and 2005 by the California Fish and Game. Non-native trout were removed from a total of eight lakes and it was discovered that the frog populations were re-established and thriving in less than four years.

The easy solution would be to remove non-native trout instead of creating restrictions on land use over millions of acres, but there is likely some powerful lobbying efforts behind the scenes from groups like Trout Unlimited.

The proposed rule will bring about additional restrictions to prospecting and any other activities across the proposed habitat in twelve counties, which could include more closures to access roads and trails.

A copy of the Federal Register Notice can be found by searching the Internet for “yellow legged frog proposed rule” or by clicking on “Legislative and Regulatory Update” at www.icmj.com

Comments are due by June 24, 2013. Comments can be submitted by mail to:

Public Comments Processing
Attn: FWS–R8–ES–2012–0074
Div. of Policy and Directives Mgmt.
U.S. Fish and Wildlife Service
4401 N Fairfax Dr., MS 2042–PDM
Arlington, VA 22203

• Last chance for Nevada claim refunds
During a 2010 special session, the Nevada legislature approved additional fees for mining claimholders in the state in an attempt to cover a shortfall in the budget. The law was ruled unconstitutional in 2011.

District Judge James Wilson ruled the additional fees—up to 600% higher for those who held more than 1,300 claims—amounted to an unconstitutional tax on miners. Nevada miners who paid the additional fees have until June 30, 2013, to file a refund claim.

You can obtain a copy of the form from your county department of taxation, or search the Internet for Nevada mining claim refund form.

• California suction gold dredging update
As we reported in this column in our January 2013 issue, Brandon Rinehart was a suction gold dredger who was charged with operating a suction gold dredge without a permit in Northern California. Obviously the current moratorium on suction dredging in the state prevented him from obtaining such a permit.

On May 15, 2013, Plumas County Judge Ira Kaufman ruled that Rinehart was guilty as charged, though the judge refused to allow a preemption defense.

“The Judge also remarked that he thought the matter should be appealed,” said attorney James Buchal. “The case is pretty well positioned for appeal, because the judge also ruled that Mr. Rinehart was not entitled to present any evidence concerning the degree to which [California’s] prohibition on permits interfered with mining. He appeared to simply follow the suggestion of the prosecutor that the statute, on its face, simply did not give rise to a triable preemption issue at all. I think this decision is almost certainly wrong given existing precedent, though it remains to be seen whether the California courts will pay any attention to precedent.”

Rinehart has thirty days to decide whether or not to appeal. It has been an expensive process for him and will cost several thousand dollars more to file an appeal. Contributions are certainly welcomed and can be sent to:

James L. Buchal
Murphy & Buchal LLP
3425 SE Yamhill St., Ste. 100
Portland, OR 97214

Mr. Buchal can be reached at (503) 227-1011.

Meanwhile, the next big court date regarding the California suction gold dredging moratorium is on July 23, 2013 at 8:30am at Rancho Cucamonga Superior Court, 8303 Haven Ave., Rancho Cucamonga, CA 91730.

Attorneys for the miners will seek a preliminary injunction to immediately restore the rights of suction gold dredgers in the state. The hearing will be in Department R8 in front of Judge Gilbert Ochoa, and it would be great to have miners show up to lend their support.