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Update on California Suction Gold Dredge hearings

September 5, 2014

by Scott Harn, Editor/Publisher, ICMJ's Prospecting and Mining Journal
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Latest Update: 9/8/2014

  There is nothing exciting to report from the September 5 hearing beyond what we noted below, though additional dates have been scheduled for the Mandatory Settlement Conference ordered by Judge Gilbert Ochoa in San Bernardino County, California.

The miners and their attorneys are continuing to go through the 2012 regulations point-by-point. Judge Ochoa has ordered the involved parties to return to his court for additional hearings September 16 - 17, and has also set aside September 30 - October 2, 2014 as additional hearing dates as needed.


Update: 9/4/2014

The suction gold dredge settlement hearings reconvened on September 4, 2014, in front of Judge Gilbert Ochoa in San Bernardino County.

First, let's revisit the previous hearings, which concluded on July 25.

-- From my June 26, 2014 Update:

      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.
_______________

-- From September 4, 2014

Ron Kliewer, one of our senior writers, is a plaintiff in this case and was present as the hearings reconvened on September 4.  

Accompanying Ron, representing suction gold dredgers, were the following plaintiffs (left to right):
       Jerry Hobbs, President, Public Lands for the People
       Eric Maksymyk, Western Mining Alliance
       Keith Walker
       Dave McCracken, New 49er's
       Craig Lindsay, Western Mining Alliance
       Steve Tyler
California-suction-dredge-hearing
Not pictured but present in court on behalf of the miners were the following plaintiffs and attorneys:
       Walt Wagner, Public Lands for the People
       Dee Stapp, Public Lands for the People
       Steve Klesyk
       Rich Krimm
       Mark and Liz Cutler
       Pat Keene, Keene Engineering
       Ron Hanson
       Ron Kliewer
       Ben Kimble
       and mining attorneys James Buchal and David Young

The involved parties are not allowed to discuss specific details of the negotiations; however, Ron Kliewer provided a few generalities to update our readers:

  If the legal system functions as intended, upholding the rule of law, the dredgers may very well be back in the water by next summer. We can only pray that those in authority uphold the rule of law as it was intended.
 
Today was day one of Chapter Two in the Mandatory Settlement Conference. By definition, the very title that uses the word “settlement” implies that neither party will get the whole pizza. By working through all the issues and coming to a working agreement, both sides in these cases should be able to walk away with what they feel is a workable settlement.

As one of the plaintiffs, I can’t say anything detailed about the internal process that is taking place, but I can say that I believe there is some golden glimmer showing that we are making progress. It is slow, hard work, and costs a lot of time and money on the part of the plaintiffs -- a handful your fellow dredgers traveling from around the country to San Bernardino to fight the good fight -- but we are starting to gain momentum in the mining communities’ favor.

It is also expensive to keep our team in the fight with all the legal expense, but we are playing the hand we were dealt and making lemonade out of lemons.

Dave McCracken commented at the end of today’s court work that he feels we made more progress today than we have in two years of litigation.

I am cautiously optimistic. Time will tell.

Thanks to you all who have donated to Public Lands for the People -- you are as much in the fight as those of us that are in the courtroom. Without your donations, we wouldn’t have made it this far! Thomas Paine, Ben Franklin, George Washington and the rest of the Founders aren’t here for this fight. It’s our turn to pick up the torch and fight. Let’s finish strong; we are modern day patriots, upholding freedom and the rule of law that was so generously given to us by our forefathers. 

-- The hearings continued today, September 5, and we will continue to keep you posted.

In the meantime, Public Lands for the People continues to raise funds to pay the attorneys involved in this case. Please visit the Public Lands for the People eBay pages to purchase gold or other items offered for sale, or visit their website to become a member or renew your membership.

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