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Suction Dredging Update: State of California response to PLP federal lawsuit on SB 670 and more

December 2, 2009

On November 24, the State of California filed their response in federal court to the lawsuit filed by Public Lands for the People.

The goal of the lawsuit is to reinstate dredge permits by the start of the 2010 dredging season by obtaining an injunction against the State of California and enjoining the State from enforcing SB 670, the bill passed by California that halted the issuance of suction gold dredging permits until a new Environmental Impact Report is completed. The EIR has been started, but is not scheduled to be completed until late in 2011.

California’s response shows that it is grasping for straws. First, it argues that the 11th Amendment of the US Constitution “bars all suits in federal court, in law and equity, against states, their agencies, and state officials in their official capacities.” Several court cases are offered up as setting case precedence in this area, but they leave out the most relevant cases that contradict their arguments. When the State assumed the federal responsibility for issuing permits for suction gold dredging, they effectively waived their sovereign immunity under the 11th Amendment.

The State of California agreed to several items to gain approval to the Union back in September 1850. Most important in this case is Section 3, which states, “And be it further enacted, That the said State of California is admitted into the Union upon the express condition that the people of said State, through their legislature or otherwise, shall never interfere with the primary disposal of the public lands within its limits, and shall pass no law and do no act whereby the title of the United States to, and right to dispose of, the same shall be impaired or questioned…” (Emphasis added.)

The State also argues that the issue will not be resolved, even if PLP is victorious, because of the injunction that banned suction dredging permits put in place by Judge Frank Roesch in Alameda Superior Court in the Hillman et al v. California Department of Fish & Game case. This Hillman case is under appeal and has no bearing on SB 670, which is a piece of legislation and completely separate from the court case.

The State response ignores the various mining laws, including the 1866 and 1872 Mining Laws, which clearly define mining as a granted right. The State is obligated to protect those rights because it assumed that responsibility when it agreed to take over the suction dredge permitting process from the federal government. The State claims the Legislature has the legitimate right to pass statutes that protect the environment. But this was addressed in South Dakota Mining Association v. Lawrence County. In this case, the court found that a regulatory authority cannot overstep a granted federal right by issuing regulations that prevent the only economical method of mining a particular deposit.

The State’s court filings are available on our website now and you read them for yourself here:
  1. Motion to dismiss (3 pages - pdf)
  2. Memorandum of Points and Authorities in Support of CA DFG’s Motion to Dismiss (48 pages - pdf)
  3. Request for Judicial Notice in Support of Defendant’s Motion to Dismiss and/or Strike and/or For a More Definitive Answer (69 pages - pdf)
In related news, the California Department of Fish & Game director Donald Koch submitted his resignation on October 21, effective November 1, 2009. He provided little explanation for his abrupt departure, other than stating it was for “personal reasons.” This only speculation on our part, but he may have seen the writing on the wall in this case and wanted to avoid personal liability. He has been replaced by acting director John McCamman.

Also, the National Park Service is attempting to restrict more areas of the Merced River in California from suction dredging. Public scoping comments are due February 4, 2009. This process was started when the Park Service settled litigation with several environmental organizations. The settlement agreement can be viewed here: www.nps.gov/yose/parkmgmt/litigation.htm
Documents related to the Merced River Plan can be viewed here: http://www.nps.gov/yose/parkmgmt/newmrp.htm

The next court date in the federal lawsuit against SB 670 is February 4, 2010, in US District Court for the Eastern District of California in front of Judge Morrison C. England.

In the Alameda case, PLP's appeal is tentatively scheduled for December 17, 2009, in the State Court of Appeals.

Reminder
Comments are due for the scoping of the new Environmental Impact Report on suction dredging in California.

Written comments must be postmarked by December 3, 2009, and may be submitted by email: dfgsuctiondredge@dfg.ca.gov

Or by regular mail:
Mark Stopher
California Department of Fish and Game
601 Locust Street
Redding, CA 96001

The Notice of Preparation/Intitial Study is available here: Notice of Preparation/Initial Study (2Mb pdf file, 115 pages)
(If the above link does not work, go to www.icmj.com and look in the Recent News section.)

The Department of Fish & Game is looking for any studies that will help them write the new EIR for suction dredging. This includes personal experience. For example, at the scoping meeting in Sacramento, the agency displayed data that grossly overestimated the amount of material each size of dredge.

Scott Harn
Editor/Publisher
ICMJ's Prospecting and Mining Journal
www.icmj.com
831 479-1500

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