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Significant progress made in court for California suction gold dredgers; still more work to be done

December 13, 2014

by Ron Kliewer
Senior Writer
ICMJ's Prospecting and Mining Journal


Today was a milestone day in the battle to maintain the rights of miners to dredge on federal mining claims in California. As a plaintiff in this case, I was in the courtroom on Friday, December 12, 2014, along with fifteen miners who gathered to show their support in the ongoing fight with the various parties arrayed against them, trying to extinguish their way of life, their way of supporting their families and their way of boosting the local rural economies. It has been an upstream fight and we got to rest a bit today in a pool of tranquility. Judge Ochoa, after months of reading endless briefs and supporting cases that were cited by both sides, told us plainly where he stood on several aspects of the combined cases and what he intended to rule in the coming weeks. First I’ll get into the tall grass with some details of the court proceedings so you get a taste of how things work; then I’ll spread out the paydirt in the gold pan for you.

Judge Ochoa opened the proceedings by asking the six lawyers arrayed in the front of the courtroom if they had anything they wished to air in oral arguments before the court before he made his announcement of his intended rulings.  James Buchal, who is representing the New ‘49ers and others in these cases, stood up and made a very clear, articulate case for enjoining the State Water Resources Control Board in the Mandatory Settlement Conference that Judge Ochoa has ordered. He reasoned that by enjoining the Water Board at this time, future litigation could be avoided. Since the Water Board is on record against allowing dredging in California, Mr. Buchal’s argument to include them in Settlement discussions made perfect sense. All of us want to avoid having the Water Board place additional roadblocks in front of dredgers as soon as they get the all clear to get back in the water. He also argued that the miners have a valid takings claim against the Water Board. The Agency took away our rights in 2000 by neglecting to notify us of their actions.

Bradley Solomon, counsel for the State Dept. of Fish and Wildlife, argued to continue the Settlement Conference without any rulings from the Court. He requested the judge not rule on the Motion for Summary Judgment (MSJ) until the California State Supreme Court had the opportunity to rule on the Rinehart case. 

In the Rinehart case, the California Third Court of Appeals ruled that a lower court should have considered Rinehart’s argument that federal mining law preempts state mining law.

The Dept. of Fish and Wildlife has petitioned the Supreme Court to review the Rinehart case, but the judge made it clear that indeed this has not yet occurred, and may not. I might add that even if they do take the case, it will not be a slam dunk to drown the dredgers by any means—we are standing on solid ground on the issue of federal preemption.

David Young, counsel for Public Lands for the People, requested a two –tier track. He laid out a plan to continue the Mandatory Settlement Conference on one track (which is hammering out a compromise on the revised suction dredge regulations), asked the judge to go ahead and make his ruling on the Motion for Summary Judgment (federal preemption), and to lift the Stay, implemented by an order signed by the Court on May 21, 2014.

Lynn Saxton, counsel for the Karuk Tribe, asked that there be more discussion with additional briefings submitted to the Court.  Judge Ochoa responded to this request by mentioning he had read stacks of briefings and we had discussed them ad nauseum. The judge denied Ms. Saxton’s request by referencing the landmark cases of Granite Rock and South Dakota Mining and how they relate to the issue of a moratorium on mining.

When the Judge had completed his response to the counsel for the Karuk Tribe, Mr. Buchal made one more attempt to persuade the judge to enjoin the Water Board. He contended that the Dept. of Fish and Wildlife is going to amend the dredge rules (AKA “Regulations”), requiring the Water Board to require the dredgers to obtain an additional water permit before being allowed to dredge.

Judge Ochoa responded that he intends to use the Rinehart case, now that it has been published by the Third Court of Appeals, to give the court direction. He declared he will be ruling and, “Let the chips fall where they may.” He also agreed with Mr. Young that two tracks are a good idea and his rulings will be made the first week of January, 2015. Judge Ochoa gave clear indication of what he will rule in his statements about the Rinehart case. Since the Rinehart case has been published, he is free to reference it in his decision even though the State Supreme Court may hear Fish and Wildlife’s appeal to have it “unpublished” sometime in the future. He wants the case to go forward and right now there is clarity of direction. This is tremendous news for the miners!

I looked over at Walt Wegner, vice president of PLP, and he was trying to hide his obvious delight with Judge Ochoa’s statements. This has been a long, hard, expensive fight, and though it is far from over, we are making some serious, long-term legal wins for miners not only in California, but across the country!

This is what he ruled on today:
We did not get the Judge to agree with us on enjoining the Water Board in the Mandatory Settlement Conference. The judge actually wanted to grant this request, but stated he was barred from doing so on technical issues.

We did get Judge Ochoa to rule in the miner’s favor on the Motion to lift the Stay on ruling on the Motion for Summary Judgment. This will allow the Judge to make his ruling on federal preemption based on the legal precedent of the Rinehart case, which was published by the request of hundreds of miners who wrote letters to the Third Appellate Court!

The Judge made it known he will make his ruling without further oral argument the first week of January. He set the date to continue the Mandatory Settlement Conference on January 23, 2015 at 10am in his courtroom in San Bernardino. The courtroom itself is open to the public, but only parties to the litigation are allowed to participate in the discussions, typically held in the judge’s chambers or a conference room.

A special thank you goes out to Jerry Hobbs, president of Public Lands for the People, who has been in this fight over 20 years. We would have lost this fight before it even began had it not been for his expertise in dealing with these issues. We all owe a great debt of gratitude to Jerry for his unwavering dedication to keeping miners free to pursue their federal protected right to mine.

Editor's Note:
I'm probably sounding like a broken record, but Public Lands for the People (PLP) is in need of continuing donations in order to keep us in the fight.  These prolonged court battles -- in San Bernardino and at the California Supreme Court level -- cost money.  Attorney's are not cheap, but the work they do is essential. 

PLP is a non-profit, 501(c)(3) organization staffed by volunteers -- the staff, including the president, work for free. If you are not a member of PLP, you need to be if you want to maintain your right to mine and prospect for gold. What happens in California will undoubtedly carry over to other states.

Over the past several years ICMJ's Prospecting and Mining Journal has donated tens of thousands of dollars to PLP, but we cannot afford to do it alone -- we need the support of individuals like you.  In order to encourage you to join or renew your membership with PLP, we are again going to offer up a $10 incentive. A one-year PLP individual membership is normally $35. You can get a one-year subscription to our monthly publication for $27.95 and include $25 for a PLP membership and we'll add the additional $10 for your one-year PLP membership. If you already have a subscription you can certainly choose to add another year to your subscription to take advantage of this offer.

This offer is available online or you can give us a call at 831 479-1500 if you prefer.

We will publish a list of contributors in our February 2015 issue. 

Additional Note: We have to manually add this offer to your subscription account after you make the purchase online. You may log in and not see the order credited to your account right away.  Please give us about 36 - 48 hours to do the manual update!

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