Legislation & Regulation

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Legislative and Regulatory Update

August 2015 by Scott

Lawsuits galore
As we reported last month, the Obama Administration adopted a new rule to change the definition of Waters of the United States (WOTUS) despite the fact that Congress had been working on legislation to address the definition, with a clear majority of Congress opposed to it along with numerous states and counties.
The new definition would expand EPA authority to ponds, drainages, and other intermittent waters, which would create a regulatory burden for developers, farmers and public land users, including miners.
The National Mining Association has already filed a lawsuit in US District Court to challenge the rule and has been joined by thirteen other plaintiffs. Over twenty-five states have also filed legal challenges.
The American Exploration and Mining Association (AEMA) reported there are still several riders making their way through Congress that would suspend the rule if passed by Congress, and AEMA is likely to join in litigation to stop the rule. 
Suction dredging saga continues
On June 23, 2015, Judge Gilbert Ochoa refused to issue an injunction to provide suction gold dredge miners in California with immediate relief from California’s ban on suction dredging. 
He stated one of his primary reasons for denying the injunction is because he “heavily relied on” the appellate decision in People v. Rinehart and that case is currently being appealed to the California Supreme Court.
The Rinehart decision was published by the Court of Appeals, which allowed it to be cited in future cases. Then the State of California successfully petitioned the Court of Appeals to have the Rinehart case “unpublished.”
Ochoa had ruled back in January 2015 that federal law preempts state law, consistent with the recent People v. Rinehart case. In other words, the State of California cannot refuse to allow suction gold dredge mining when it is allowed by federal law. The agency cannot require a suction gold dredging permit and then refuse to issue such a permit under the guise of a “temporary” moratorium. He went so far as to label it a permitting “scheme.”
Though Ochoa had ruled in favor of the dredgers in January, he did not provide clear guidance on how to deal with an agency—the California Department of Fish & Wildlife—that continues to refuse to issue suction gold dredging permits and still considers dredging illegal without a permit.
A few suction dredgers resumed dredging without a permit. Some were contacted by law enforcement and were left alone, while others were threatened with arrest and confiscation of equipment. Dredgers we spoke with had favorable results when they politely provided officers with a copy of Judge Ochoa’s ruling.
Following harassment of gold dredgers in Siskiyou County, attorney James Buchal, representing the New 49’ers, sought an injunction in Siskiyou County to prevent law enforcement from issuing citations to suction gold dredgers or confiscating equipment. The State of California successfully got this injunction hearing moved to Judge Ochoa’s court and PLP joined New 49’ers in supporting the injunction.
Judge Ochoa was “somber” and “all business” at the hearing, while at past hearings he was much more sympathetic to the miners’ plight. Although the environmental group attorneys and state attorneys were present, this was the first time that no environmental extremists were in the courtroom, lending some to believe they may have been notified of the judge’s ruling in advance.
Ochoa is in a tough spot—if he rules in favor of the miners, he may very well be out of a job and this has likely been made very clear to him by superiors in Sacramento.
Judge Ochoa scheduled a full trial on all of the issues involved—federal preemption, the California Environmental Quality Act, etc.,—to commence on January 20, 2016.
Members of Public Lands for the People, Western Mining Alliance, New 49’ers, their attorneys and additional plaintiffs all met after the hearing and discussed several viable options. No one was ready to give up a very winnable case and all of the miners are united. The law and court precedence is clearly in favor of suction dredge miners, and James Buchal did an outstanding job of covering those issues while representing Rinehart.
At press time, the above parties had agreed to file an appeal and were preparing the necessary documents.
Environmentalists in California found  a new ally in state Senator Ben Allen. Allen is from the ritzy district of Malibu, an area with no current mining claims.
Allen introduced SB 637, which would turn suction dredge permitting in California over to the State Water Resources Control Board, an unelected agency that is clearly trying to put an end to suction dredge mining.
At a hearing for SB 637 on July 14, the Western Mining Alliance and others made presentations while representatives of the Sierra Fund and other environmental extremist groups continued their unsubstantiated claims of doom and gloom. Mining representatives were not optimistic that any of the Democrats present at the hearing will support the miners. This is another reason it’s important that we all get behind the bill that will be introduced to restore the rights of miners at the federal level. (See “Mineral and Regulatory Reform Act” in our June 2015 issue for the bill, and read the “MMAC & PLP Update later in this issue for further information.)
In the meantime, the appeal of People v. Rinehart continues at the California Supreme Court. Attorneys for the State of California and environmental groups may be joined by the US Department of Justice in trying to strike down the Rinehart ruling on federal preemption. The Mountain States Legal Foundation is also weighing in and filed an amicus brief in support of Rinehart on behalf of the American Exploration and Mining Association.
We expect quite a few suction dredgers will keep right on dredging. We’ve spoken to some who are moving forward with plans to file a Direct and Constructive Notice against Fish & Wildlife. Such a notice is a prerequisite to suing an individual personally for violating your rights. (See “Direct and Constructive Notice” in our June 2015 issue for more information.)
Some dredgers are carrying copies of Judge Ochoa’s January 2015 ruling to present to law enforcement if needed, while others have chosen to wait and see how all this plays out in court.
No matter which direction you take, please be calm and courteous whenever you come into contact with Fish & Wildlife or other law enforcement. We know this is has been extremely frustrating, but we will prevail.
HR 1937 to streamline permitting, remove obstacles to miners
A hearing took place in front of the House Natural Resources Subcommittee on Energy and Natural Resources on HR 1937, the National Strategic and Critical Minerals Production Act of 2015. 
The Act would reduce permitting delays by requiring an initial response by the lead agency within 90 days of the permit application and require a full decision within 30 months, allow a single agency to be the point of contact, and exempt all areas of identified mineral resources in Land Use Designations including the routes to and from such a resource while prioritizing mineral development.
HR 1937 would also deny “attorney fees, expenses and other court costs” to non-governmental organizations who might file suit to stop a project.
The bill was introduced by Representative Mark Amodei (R-Nevada) and has 45 cosponsors at our press time. A companion bill has been introduced in the Senate.
Sage-grouse debate continues
Debate over protected habitat for the Sage-grouse continues, and the BLM has disclosed their intention to disregard most of the plans and recommendations made by governors of the Western states. The BLM rejected all the state management plans with the exception of Wyoming.
The agency’s Proposed Resource Management Plans would remove 11 million acres across eleven states from mineral entry. Congress is looking at including language in the National Defense Authorization Act to delay a Sage-grouse decision for ten years and prohibit land use restrictions. This language is already in the House version of the Act but has not yet been included in the Senate version.
More National Monuments
President Obama locked up another 700,000 acres from miners and other public lands users in Nevada by using the Antiquities Act to create the Basin and Range National Monument about two hours north of Las Vegas. 
Obama also created the Berryessa Snow Mountain National Monument in Northern California (350,000 acres) and a smaller monument around Waco, Texas, where remains of mammoths have been found.
President Obama has now created or expanded a total of nineteen monuments while in office.

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