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Update on California suction gold dredge hearings

January 28, 2016

by Scott Harn
Editor/Publisher
ICMJ's Prospecting and Mining Journal
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On January 20, 2016, miners returned to Judge Ochoa’s courtroom for some justice, only to be denied their rights again when Ochoa could not summon the courage to take on the State of California and environmental groups. Ochoa “candidly admitted that the mining community is being denied justice in his own courtroom by deferring a decision on the CEQA case. Judge Ochoa is kicking the can down the road until the California Supreme Court rules on the Brandon Rinehart case,” said Public Lands for the People.

In January of last year (2015), Judge Gilbert Ochoa issued his ruling in People v. Rinehart. Here is a rough summary of that ruling:
  • A suction gold dredge is the only practical method of gold recovery on many federal mining claims.
  • The State of California continues to require permits but refuses to issue such permits.
  • The Department of Fish & Game has been prohibited from issuing permits until certain, legislatively required conditions can be met, and those requirements are not attainable.
  • When state law conflicts with federal law—in this case by prohibiting suction gold dredging—federal law prevails.
Environmental groups and the State of California appealed to the California Supreme Court, and that appeal is still pending. The briefs have been filed by all of the involved parties but no date has been announced for a ruling as yet.

Attorney James Buchal (Murphy & Buchal LLP) commented following the latest hearing:

This morning was the scheduled time for Judge Ochoa to hear and rule upon CEQA and Administrative Procedure Act challenges to the Department’s FSEIR on suction dredging, as well as the time set for a hearing on a motion for summary judgment (and the Department’s counter-motion for judgment on the pleadings) concerning the question whether AB 120 and SB 1018 were unconstitutional for violation of the “one subject” rule in the California Constitution.

The hearing was delayed because the Judge was in the process of preparing his tentative ruling. He would not decide anything; everything would be stayed pending a ruling in People v. Rinehart. I was given the opportunity to contest the tentative ruling, and pointed out to the Judge that while there was some limited overlap between the federal preemption issues and the CEQA arguments, the “one subject” case had nothing to do with People v. Rinehart.

I explained that we were in the process of getting water quality permits or waivers, but even if we got them, the unconstitutional provisions of AB 120 and SB 1018 would still require certifications about birds, noise, wildlife and historical/cultural issues, such that we could not get suction dredging permits even to run under the restrictive 2012 regulations. Striking down AB 120 and SB 1018 would remove all legal obstacles (other than water quality certifications) to the Department’s issuance of permits under the 2012 regulations without regard to any federal preemption issues. I was interrupted in mid-argument as I then strayed into the merits of the CEQA baseline argument (which also has nothing to do with federal preemption).

At the end of the hearing, after hearing from the Department, which reversed its earlier position that we needed to decide these issues, I said that of course the Department and Tribe were happy for delay, that justice delayed is justice denied, and this was unfair. The Judge remarked that he agreed with my last observation—it was unfair—but there was nothing he could do about it.

Whether or not a federal court will recognize the extraordinary nature of our treatment in the California courts as, in substance, a concerted effort to frustrate federal civil mining rights, remains to be seen. This morning’s developments are certainly more evidence in support of that position.

Suction dredge gold miners now have one of two choices to make.

If you are a California suction dredger, you have been out of the water for nearly six years now. You can continue to sit and wait for the California Supreme Court to rule on People v. Rinehart while your right to mine is continually violated, then wait again for Judge Ochoa to rule after the People v. Rinehart case is decided. Follow this path and you might get back in the water in 2016, 2017, or some future date when Judge Ochoa musters the courage to act.

Or you can use the power of your Mining District to get back in the water now. Mining Districts were granted the power to create their own rules and regulations in the 1872 Mining Act. Most Traditional Mining Districts are currently unorganized, without an elected board in place. You can get your Traditional Mining District organized again if it is in disarray, set your own rules and regulations that are not in conflict with federal regulations, forego the unlawful California permitting “scheme” and get back to suction dredge mining this season.

It seems like a fairly easy decision to me.

I’m not an attorney, but here are the steps I believe you should take to cover all of your bases and get back to dredging:
  1. Make sure your Mining District is organized. If it’s not, get it organized. (If you are in California you can find a map of the Mining Districts online at http://www.westernmininghistory.com/articles/206/page1)
  2. Locate the original bylaws. (A California law passed in 1953 forbid the creation of new districts so it’s essential to locate the original bylaws.) Check our list of Bylaws for Traditional Mining Districts page. If you can’t locate the bylaws there, check the Internet, your county recorder’s office, libraries, museums, historical societies, etc.
  3. Once you have the original bylaws, publish a Public Notice to let claimholders in the area know that a meeting will be held to elect a board. We will publish it for no charge—just give us about sixty days notice so we can get it into the magazine and in the hands of our subscribers in plenty of time.
  4. Elect a board and amend the bylaws to reflect current claim requirements, dredging rules, etc. If you need assistance in determining what should be in the amended bylaws, please send an email to miningdistricts@mmmacusa.org
  5. Advise the USFS, BLM, EPA, Fish and Wildlife, and state agencies you have mining rules and regulations for your Mining District in place and that you require “coordination” status for any agency proposals, rules, regulations, plans or related agency activities that could impact your Mining District.
  6. Offer to work with the agencies under a Memorandum of Understanding (MOU). Put your rules, requirements, and regulations into the MOU. If accepted, have it signed by all parties. If not accepted, move on without them.
  7. Prepare and serve a Direct and Constructive Notice on the local, state, and federal agents to advise them you will sue them personally in civil court if they violate your rights. (See an example of Direct and Constructive Notice in our April 2015 issue.) Carry a copy of the Direct and Constructive Notice with you in case you need to (politely) give a copy to any local, state or federal agents who might visit your mining site.
  8. Adhere to your Mining District rules and regulations and get back to dredging your federal mining claim.
  9. If you are harassed in any way by local, state or federal agents, you need to follow through and sue them civilly, even if you do it in small claims court.
Last, but not least, join us in our efforts to pass the Minerals and Mining Regulatory Reform Act—A Clear Path Respecting Mining Rights. This bill was written to restore access to restricted areas, reset the playing field and return mining to the first priority for public lands. The bill is currently being revised/condensed at the request of several members of Congress so it can be pushed through in 2016. A fundraising campaign is underway to hire McKeon Group LLC, run by retired Congressman “Buck” McKeon, to get the bill through Congress. Public Lands for the People, a 501(c)(3) organization, is spearheading this effort and your tax-deductible contributions are needed and appreciated. 

The way I see it, you have one of two choices:
  1. Continue to wait for the cases to be settled in court so you might be able to apply for a permit you don't need (see "What is Incidental Fallback?" December 2015 issue, ICMJ's Prospecting and Mining Journal);
  2. Or utilize the power of your Mining District and get back in the water in 2016.
Some subscribers I've spoken with have stated they are currently dredging their federal mining claims in California without going through the hassle of reorganizing their Mining District and without filing a Direct and Constructive Notice. That's fine, too, though I believe Mining District rules and regulations, and utilizing a Direct and Constructive Notice, give you an added layer of protection against agency abuse. 

The People v. Rinehart case was already decided in favor of federal preemption even though it has been appealed, and the US Supreme Court already determined that "incidental fallback" is not a discharge. It seems the only thing keeping many suction gold dredgers out of the water is the fear of agency harassment and the lack of courage on the part of the miner.

It is my belief—and the position of PLP—that suction gold dredging on a federal mining claim does not require a Section 404 or related permit. As the court previously ruled, “[b]ecause incidental fallback represents a net withdrawal, not an addition, of material, it cannot be a discharge.”

The path you take is entirely up to you.

P.S. I'll be giving a full presentation on the power of Mining Districts at our 2016 Gold Prospecting and Mining Summit in Placerville, California in April. Hope to see you there.

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