Copy of Judge Ochoa's January 12 ruling on federal preemption available for download
May 7, 2015
Copy of Judge Ochoa's January 12 Ruling on Federal Preemption Available for Download
by Scott Harn
ICMJ's Prospecting and Mining Journal
In a nutshell, Judge Ochoa ruled that federal mining law preempts state law. He called the State of California's permit requirement a "scheme" because the State requires permits for suction gold dredging but refuses to issue such permits.
I've been informed by a few dredgers that they have resumed dredging and, when approached by law enforcement, have presented the law enforcement officer with a copy of Ochoa's January 12 ruling. While this has satisfied some of the law enforcement officers, a small number of dredgers have reported they were cited and some of their equipment was confiscated.
To resolve the enforcement issue, attorney James Buchal, on behalf of the New 49er's and other plaintiffs, filed for a restraining order in Siskiyou County to prevent law enforcement 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 met with Judge Ochoa in late April to try to resolve this issue.
Buchal reported, "I told the Judge that unless and until relief were entered, other miners would continue to file for relief. Judge Ochoa stated that although he had been tempted to sign our form of proposed order on the motions for summary judgment that had been granted back in January, granting relief against Department enforcement, he ultimately concluded that there might be “due process” problems because there hadn’t been enough of a hearing on the form of relief.
"He said that he had signed the State’s form of order on the motions for summary judgment, and indeed had already signed it, though it has not yet been released. (This form of order is 'plain vanilla' and just states that the mining interests prevailed on all the motions for summary adjudication).
"At this point, I told him that in light of his comments about providing due process, I was inclined to re-tool the Siskiyou County papers and bring the question of injunctive relief against the Department directly before him. The Judge demanded that we work out a schedule with Mr. Solomon to accommodate a hearing for relief from Department enforcement, allowing the Tribal and environmental parties a full opportunity to participate.
"In sum, 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."
We will keep you posted as this case progresses.
Here is a copy of Judge Ochoa's January 12 decision on federal preemption courtesy of the New 49er's.