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California suction gold dredge settlement hearings concluded for now

June 26, 2014

by Scott Harn, Editor/Publisher, ICMJs Prospecting and Mining Journal

On June 24 & 25, 2014, plaintiffs, defendants and attorneys attended mandatory settlement hearings in San Bernardino, California.

Judge Gilbert Ochoa met with the involved parties individually and in small groups in his chambers in an attempt to reach an agreement over the suction gold dredge permitting process and the current regulations. These hearings were not open to the public.

The bottom line is that there was no agreement. Honestly, we didn't expect an agreement to be reached. The State of California and environmental extremists want dredgers out of the water, but miners are not about to give up their rights.

The next step is for Judge Ochoa to rule on the merits of the case -- at least that was supposed to be the next step. However, he has thrown another monkey wrench into the process.  Judge Ochoa continued the hearing until September 4, 2014.  He ordered the involved parties to go through the new dredging regulations established in 2012 and address each point individually, then present their negotiating points to the court.

We obviously have a problem with this approach, and you can rest assured the miners and their attorneys do also.  The 2012 regulations were based on bogus science, and I use the term "science" loosely.  They were designed to promote an ideology.  With the help of environmental groups, the California Department of Fish & Wildlife inserted countless roadblocks into the 2012 regulations to keep dredgers out of the water.  For example, they closed over 600 gold-bearing waterways to suction dredging, but claimed the closure was offset by the opening of waterways in other areas. The newly opened waters are at snow-level elevations with an operating season of September through January, and they are in areas that contain little or no gold. Nice try.

Other unworkable portions of the 2012 regulations include:
  • prohibiting dredging within three feet of any bank, which eliminates many smaller waterways and puts much of the gold out of reach on larger waterways
  • limiting dredge permits to 1,500 per season, which takes away the rights of thousands of dredgers
  • filling in all dredge holes, which nature does naturally -- often within one season
  • outlawing the use of winches without prior approval for each use, creating a dangerous work environment
  • limiting nozzle sizes to four inches, which makes production unprofitable in many situations
  • requiring 500' between dredges, which creates conflict between dredgers on adjoining claims
  • reporting finds by dredgers along with their locations, which would be an invitation to all crooks to come take your gold
  • limiting working hours from 10am-4pm, which could make dredging unprofitable
  • requring complete mitigation, which included things like noise and aesthetics that are impossible to achieve
We could go on for many more pages, but what is the point?  The 2012 regulations were crafted to prevent dredging, not to reasonably regulate it. In our view, using the 2012 regulations instead of the 1994 regulations as a starting point is purely a delay tactic.  Nothing in the 2012 regulations is negotiable -- it all needs to be tossed out. But why would the judge be delaying this case?

Following are a couple of interesting side notes that might provide the answer.

A related case involving Brandon Rinehart is before the Third Appellate Court. Rinehart is a suction gold dredger, and he operated with a permit up until the time that the State of California stopped issuing permits. Unable to obtain a permit, he continued dredging in protest.  On June 16, 2012, he was cited for dredging without a permit on his own federal mining claim.

Rinehart pled guilty while retaining his right to appeal. He was fined $832 and given three years probation. Attorney James Buchal is handling the appeal. In his opening brief, Buchal explained, "...the central, pivotal issue is the question of whether federal mining laws preempt state laws prohibiting and regulating suction dredge mining..."

Buchal did an excellent job of laying out the facts and backing Rinehart's position with federal laws and established case law in the thirty-eight page opening brief and subsequent reply briefs.

The usual suspects -- the Karuk Tribe and the Center for Biological Diversity -- filed amicus curiae briefs in support of the State of California. The Pacific Legal Foundation and Western Mining Alliance joined, filing amicus curiae briefs in support of Rinehart.

This issue of federal preemption is scheduled for oral arguments on Monday, September 15, 2014. 

If the Third Appellate Court rules in favor of Rinehart, Judge Ochoa would have to rule the same way.  It may be that Judge Ochoa is simply delaying a ruling in San Bernardino until the Rinehart case is settled.

We also have to remember that Judge Ochoa is an elected official trying to walk a tightrope, with government officials and powerful environmentalists on one side, and miners supported by current laws and case law on the other.  I don't pretend to know what Judge Ochoa's aspirations are, but I'm sure he is well aware that his career could be riding on how he handles this decision.

Here is a link to the Third Appellate Court case file for Brandon Rinehart, which includes links to the briefs and related documents.

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