By SARAH REIJONEN
For the GPAA
Three-and-a-half years and $50,000 later, Brandon Rinehart is still waiting for an answer from the California courts.
But, it’s not just Rinehart who wants to hear a favorable outcome in his suction-dredge mining case. Miners across the state and the country have got their hopes riding on a Rinehart win.
What started as a citation for suction dredging without a permit in Plumas County in June 2012—resulting in two misdemeanors, an $832 fine and three years probation—is now a case before the California Supreme Court.
“I was the first dredger they tried to prosecute,” Rinehart said. “The rest of the miners went away, and that’s what they [the state and environmental groups] were hoping for. I attempted to fight it and I’ve become their enemy and a pain in their side. If it wasn’t for my case, they probably would have settled it and it wouldn’t have been in the miners’ favor. My case has put a wrench in their gears.”
Rinehart’s case has even caught the watchful eye of the United States government. In August, U.S. Assistant Attorney General John Cruden submitted an amicus curiae brief in opposition of Rinehart.
“The United States Supreme Court stated that the intent of Congress in enacting the mining laws ‘was to reward and encourage the discovery of minerals that are valuable in an economic sense.’ Coleman, 390 U.S. at 602. But, these general statements of Congressional purpose are too broad for purposes of determining whether a specific state law conflicts with federal law and is preempted,” according to the amicus curiae brief submitted by the U.S. government.
Rinehart’s attorney James Buchal said the brief is a direct reflection of the current administration’s environmental agenda. Just 30 years ago, the scene would have played out much differently, Buchal said.
“What’s ironic about this is back in 1986, when every single statute was exactly the same, the Solicitor General of the United States filed a brief that was quite stronger than the position we’re taking,” Buchal said. “So, what it shows is this particular administration—in this regard as in so many others—doesn’t really feel bound by precedent or prior law or the language of statutes or their purpose.”
Feds side with the state
The main points of the federal government’s brief revolve around environmental impacts and the right of the state to regulate mining.
According to the amicus curiae, “It is not ‘a physical impossibility’ for Rinehart to comply with both state and federal law. Arizona, 132 S.Ct. at 2501 (citation omitted). And although the Court of Appeal concluded that state law posed such an ‘obstacle’ to fulfilling Congress’s intent that it was preempted by federal law, that conclusion was erroneous.”
In addition, the brief stated that “all state laws governing mining operation must be complied with so long as they are not ‘inconsistent with the laws of the United States.’ 30 U.S.C. § 22. Whether they are ‘inconsistent’ with federal law is determined by whether or not they conflict with federal law. Otherwise, they are not preempted, and the Mining Law of 1872 requires that miners comply with them fully.”
In other words, federal law does not trump state law, according to the government’s brief.
“The Supreme Court made a historic mistake back in 1987 when they decided by a vote of 5-4 that the comprehensive federal regulation of mining did not occupy the field of mining regulation and that there was a role for state’s to regulate as well, and the state wormed its way in through that decision,” Buchal said.
The decision to give power to the states has brought the western states into the legal quagmire they find themselves in today, Buchal said.
“They get the power and 20 years later the answer is, ‘Now we’re just gonna prohibit it completely, and there’s a fig leaf of maybe some way in another 10 years we’ll figure out how to regulate it, and so we’re really just thinking about it. And, in the process of shutting it down forever while we think about it, it’s really like regulation.’ But it’s not! It’s prohibition,” he said.
At this point, Rinehart said anything can happen when the California Supreme Court convenes to hear his case—whenever that may be. He has hopes for January, but Buchal said that seems a little too soon. The case is shrouded in uncertainty and oddities, as it has been every step of the way. From the beginning, it has been a curious case, as Rinehart was never given the opportunity to present his side in the first place.
“The judge in Plumas County refused to allow the Rinehart to present his defense and convicted him. Rinehart appealed and the appeals court agreed he should have been allowed to present a defense. Rather than allowing a trial, the State then moved to have the Supreme Court overturn a decision which essentially says Rinehart should have a fair trial,” according to Western Mining Alliance’s January 2015 newsletter.
Whether the U.S. government’s brief will have any weight on the case is just one more unanswered question.
“It may not have any bearing at all,” Rinehart said. “What is at stake here is the role the state will have in controlling federal mining claims, whether or not they can prohibit mining in the name of environmental regulations. It’s too unpredictable now.”
Criminal case overtaken by environmental agenda
“The federal government expects that states may impose restrictions on mining activity that are designed to protect the environment, and federal law requires miners to comply with those restrictions unless they directly conflict with federal law,” the U.S. government’s brief stated.
The environmental agenda is crystal clear with the current administration, Buchal said.
“It’s a fairly results-oriented administration and they’re getting somebody in California a result that they want,” Buchal said.
At some point, the case morphed into this different beast. It began as a criminal case, but extreme environmental groups, such as the Center for Biological Diversity, which also filed a brief in opposition of Rinehart, have attempted to make it a green issue.
“I don’t see it so much as an environmental case; that’s what the environmentalists say,” Buchal said, instead pointing to the state’s inadequate approach. “It’s a refusal to exercise discretion to regulate.”
Giving the case an environmental spin is just another tactic the extreme environmentalists are using to roadblock mining, Buchal said.
“The miners are under attack by environmentalists, and there’s an awful lot of jurisdiction across the country where a small minority of people can block projects of national interest and frustrate mining if the state and local governments are given free range to reach into federal land and shut down what’s going on there,” Buchal said. “It’s a great threat to mining, generally, throughout the country to have the notion that these states can regulate and ban mining.”
The issue at hand is not just the “refusal to
exercise discretion to regulate,” but also extreme over-regulation that is reaching a fever pitch, he said.
“The great disease of our time—the disease that’s steadily sending our generation back into the Dark Ages — is the notion that we have to have 500 or 600 different types of police forces and five or 10 different types of permits, and it just becomes more and more complicated until everything grinds to a halt,” Buchal said.
This is exactly what has happened in the case of miners.
“We see this now with the poor suction dredgers in California where there’s the state permit and then there’s the federal operating agreement they might need to have and then there’s a state water board permit and there’s a federal water permit and there’s the state certification of the federal permit,” Buchal said.
“And, these agencies sort of one-up each other to put more and more restrictions on something, and ultimately, it’s just this guy digging in the bottom of the river that won’t even leave a mark the following year. And, that has no effect on anybody, nobody even sees it, except the army of police—they call them wardens in California—that are out there citing people like Brandon. It’s a terrible thing.”
So, what are the miners to do? Buchal said the answer lies in action.
“These politicians who do these crazy, stupid, evil things just to make environmentalists happy, they need to be knocked off — they need to lose their power,” he said.
“There are opportunities to do that, and when the mining community doesn’t rise up and take those opportunities, the people who are oppressing them become emboldened.”
And, it’s not just about miners getting involved; all outdoorsmen and women and rural community members must join the fight if they ever want to see an end to it, Buchal said.
“The mining community and a whole lot of other natural resource and rural communities are going to have to get a lot more active if they want to lift the oppression they’re experiencing,” he said.
Sarah Reijonen is a freelance writer based in California. She can be reached at email@example.com
CHRONOLOGY OF EVENTS IN RINEHART CASE
June 2012: California Department of Fish & Wildlife cites Brandon Rinehart for possession and use of a small-scale suction dredge in a closed waterway. Rinehart was operating without a permit, as the state of California refused to issue permits at the time and was working his federal mining claim in the Plumas National Forest. Equipment was confiscated.
May 2013: Rinehart goes to court and is found guilty of two misdemeanors, fined $832 and given three years probation. Confiscated equipment returned.
October 2013: Rinehart appeals decision to Third District Appellate Court.
September 2013: Third District Appellate Court issues favorable opinion in support of Rinehart and reverses judgment. The court decides that the state does not have the authority to impose restrictions that “materially interfere with the commercial viability of mining on the public lands.”
October 2014: Third Appellate Court of California formally publishes its decision in Rinehart case due to a large volume of letters in support of publication sent in by the mining community. In response, State files petition for rehearing of Appellant Court decision. Order denying rehearing filed.
November 2014: State of California petitions California Supreme Court to review and depublish the Court of Appeal ruling in favor of Rinehart.
January 2015: California Supreme Court grants review of Appeals Court decision, which overturned Rinehart’s conviction for dredging without a permit.
May 2015: Pacific Legal Foundation files amicus brief in support of Rinehart.
July 2015: American Exploration and Mining Association files amicus brief in support of Rinehart. Karuk Tribe and law professor John D. Leshy file amicus brief in support of the State.
August 2015: United States Assistant Attorney General submits amicus curiae in opposition of Rinehart.
September 2015: Rinehart files response briefs to Karuk Tribe, John D. Leshy, and United States amicus briefs and files second conditional request for judicial notice.
October 2015: Rinehart awaits notice of hearing date, expected to be sometime in January 2016.
HOW YOU CAN HELP
For more information about AMRA, and to find out how you can help in the fight to sustain your right to mine, go to www.americanminingrights.com
Western Mining Alliance has been a key contributor to Brandon Rinehart’s defense fund from the beginning. American Mining Rights Association has also been a key contributor, giving Rinehart $2,200 in checks in a two-week span in early October. In addition, AMRA will host its First Annual Fundraiser Dinner at 5 p.m. on Dec. 12 in Oakdale, Calif. to help Rinehart with additional legal fees.
“WMA has raised substantial funds on my behalf,” Rinehart said. “AMRA comes in second. I’ve got a few gold groups and one individual that contacted me through WMA. Everyone’s working together to try and support me. The New 49ers paid for my oral arguments at appeal.”
As the process has gone on, and now, as Rinehart prepares to face the Supreme Court, legal fees continue to roll in with more zeros behind them.
“I haven’t got the bill for the reply briefs last month, but my guess is $6,000 to $8,000. The case is tipping the scale at $50,000. I have
about $6,000 into the pot myself and the rest has been donated,” said Rinehart, who was awaiting the latest bill for briefs. “Last time (Buchal) did a reply brief to the state, that bill came in at $9,000. Just the Supreme Court part of the case has cost $25,000. It adds up fast.”
Donations can be made directly to Rinehart’s lawyer:
c/o James Buchal
Murphy & Buchal LLP
3425 SE Yamhill Street #100
Portland, OR 97214
For details on AMRA’s fundraiser dinner benefiting the Rinehart case visit: https://americanminingrights.com/dinner/
(Article as featured in the December ’15/January ’16 edition of the Pick & Shovel Gazette. To subscribe, go to www.goldprospectors.org/join)