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Judge Ochoa Refuses to Issue Injunction -- Dredging Saga Continues

June 23, 2015

by Scott Harn
Editor/Publisher
ICMJ's Propsecting and Mining Journal

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On June 23, 2015, plaintiffs in the fight to restore the rights of suction gold dredgers gathered at Judge Gilbert Ochoa’s courtroom in San Bernardino Superior Court to hear his ruling on an injunction. The plaintiffs (the miners) were seeking relief in the form of an injunction to prevent the California Department of Fish & Game and state and federal law enforcement from harassing dredgers.

Judge Ochoa refused to grant the injunction. 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 Then the State of California successfully petitioned the Court of Appeals to have the Rinehart case “unpublished.”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, 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 gold 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.
 
Judge 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.

What’s Next?
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. These could include appealing Ochoa’s decision, filing for temporary restraining orders (TROs) in the counties where suction gold dredging occurs, and more. On a positive note, 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. James Buchal did an outstanding job of covering those issues while representing Rinehart, and you can read it online here.

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.

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