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Will Judge Ochoa follow the unpublished People v. Rinehart suction gold dredge ruling?

October 1, 2014

by Scott Harn
ICMJ's Prospecting and Mining Journal

The answer to that question is, "Yes, with your help!"

As we mentioned in our 09/24/2014 update on the suction gold dredging fight in California, Brandon Rinehart was successful in the appeal of his conviction for suction dredging without a permit. The Third Court of Appeals for California ruled the trial court must allow Rinehart to argue that federal laws preempt state laws regarding mining.

Rinehart was represented by attorney James Buchal.

What this means in simple terms is that Rinehart's case will return the the lower court for trial where his attorney will argue that California prohibited Rinehart from utilizing the only economical method of mining his federal mining claim when the state prohibited suction gold dredging, and that federal mining law pertaining to the regulation of federal mining claims preempts state law.

There is plenty of case precedent in this regard, including California Coastal Commission v. Granite Rock and South Dakota Mining Association v. Lawrence County.

The State of California may choose to drop the case in order to avoid losing the preemption argument. This means the unpublished opinion by the Third Appellate Court could remain unpublished.

While federal courts have allowed lawyers to cite unpublished court opinions issued on or after January 1, 2007 under Federal Rule of Appellate Procedure 32.1, California law still forbids lawyers from citing unpublished opinions in state courts.

To remedy this problem, we need to get the Third Appellate Court to publish the Rinehart opinion. This opinion can have a huge impact on the consolidated suction dredging settlement hearings currently underway in San Bernardino in front Judge Gilbert Ochoa, and you can help get the Rinehart opinion published.

To encourage the Third Appellate Court to publish the opinion, each of us needs to send in a formal request for publication.  The rules state that requests must be sent to the each of the parties listed along with the court.  It's a total of eight letters.  Send both pages to each party.

You can download the letters I sent -- the bold type is what you will need to change.

Microsoft Word document: Letter to the Third Appellate Court
Microsoft Word document: Proof of Service (page 2)

Here is a copy of my letter:

Page 2:

And here are the addresses by themselves so you can copy and paste them as needed:

Hon. Justice Harry E. Hull, Jr.
Hon. Ronald B. Robie
Hon. Andrea Lynn Hoch
914 Capital Mall
Sacramento, CA 95814

Matthew K. Carr 
Deputy District Attorney
Plumas County District Attorney
520 Main Street, Room 404
Quincy, CA 95971

Marc N. Melnick
Deputy District Attorney
Office of the Attorney General
1515 Clay Street, Suite 2000
Oakland, CA 94612

Clerk of the Court
Plumas County Supreme Court
520 Main Street, Room 104
Quincy, CA 95971

Jonathan Evens
Center for Biological Diversity
351 California Street, Suite 600
San Francisco, CA 94104

Lynne Saxton
Saxton & Associates
912 Cole Street, Suite 140
San Francisco, CA 94117

Damien Schiff
Jonathan Wood
Pacific Legal Foundation
930 G Street
Sacramento, CA 95814

James Buchal
Murphy & Buchal LLP
3425 SE Yamhill Street, Suite 100
Portland, Oregon 97214

Additional Note:  Both pages must be signed.  You can look at the court record online and see when your letters are received.  Unfortunately many of them are not valid because one of the pages does not have a signature.

Link to the Court record (scroll down toward the bottom)

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