Supreme Court rejects Rinehart case
GPAA President Brandon Johnson says legal fight will continue
By Brad Jones
A recent Supreme Court of the United States decision to reject the Brandon Rinehart case has left California gold miners reeling.
The top court’s refusal to hear the case on Jan. 8 prompted a same-day response from the Gold Prospectors Association of America, a national membership-organization representing tens of thousands of small-scale gold miners.
A statement issued by GPAA President Brandon Johnson reads: “The decision of the United States Supreme Court not to hear the Rinehart v. California argument was very unfortunate. While the mining community has not yet realized the victory we all so greatly deserve, Brandon Rinehart, and all those who supported him, have done much to raise this issue with the highest courts in the land. The legal fight to resume suction dredging will continue through similar court cases, and the members of the Gold Prospectors Association of America stand behind the efforts of the land rights groups who are pushing these cases.”
The Rinehart case
The five-year legal battle involves Brandon Rinehart, a California gold miner who was cited in 2012 for suction dredging without a permit on his own mining claim. Though the state required that Rinehart obtain a state permit, it refused to issue permits. Outraged over this Catch-22 situation, the mining community wholeheartedly backed Rinehart.
After winning appeals in the lower courts, the Rinehart case moved to the Supreme Court of California, which eventually ruled against Rinehart in a decision handed down Monday, Aug. 22, 2016. But, the high-profile case caught the attention of Pacific Legal Foundation which backed his petition to the Supreme Court of the United States.
California’s “two-year moratorium” on suction dredge mining was imposed in 2009. It was signed into law by then Gov. Arnold Schwarzenegger and remains in effect today. The moratorium has dragged on so long that miners now call it a de facto ban. They claim that justice delayed is justice denied.
Public Lands for the People, the American Mining Rights Association, Western Mining Alliance, New ’49ers and the Mineral and Mining Advisory Council say they won’t back down in their ongoing battle to preserve their congressionally granted right to mine.
‘A dark day for mining rights’
PLP President Ron Kliewer called the Jan. 8, 2018, SCOTUS rejection “a dark day for mining rights” but added that miners will keeping fighting until they see some light at the end of the tunnel.
“I understand that the Supreme Court of the United States doesn’t take most cases,” Kliewer said. “But, because this is a federal preemption case, I thought they would have taken it. I’m pretty surprised that they didn’t, actually.”
But when known environmentalist attorney Lane McFadden’s name resurfaced in the case as the co-author of a court brief, Kliewer said miners began to see the writing on the wall. Then, on Dec. 7, 2017, the U.S. Solicitor General’s office submitted an amicus curiae brief to the Supreme Court recommending that Rinehart’s petition be denied.
AMRA President Shannon Poe was so incensed that he sent a letter to Trump blasting Solicitor General Noel Francisco, alleging that one of the brief’s co-authors, Lane McFadden, is a “radical environmentalist attorney.”
“It’s not surprising to me given that Lane McFadden wrote an opinion on behalf of the Solicitor General for the Supreme Court not to hear the case,” Poe said. “McFadden has been fighting against suction dredge mining since the beginning of the Rinehart case. It’s unfortunate that McFadden wrote that brief on behalf of the Trump administration because I honestly don’t think President Trump feels that way. That’s why I wrote a letter to President Trump expressing our displeasure with having Lane McFadden infiltrate his administration.”
But, at that point, PLF and Rinehart had nothing to lose by keeping a bet on the SCOTUS table even with slim odds the case might be heard.
Poe said he has always known that Pacific Legal Foundation’s offer to petition to the Supreme Court on Rinehart’s behalf was a long shot, but worth a try. The move has helped miners build a stronger relationship with PLF, which has an excellent track record of winning cases at the SCOTUS level.
According to the SCOTUS website, the court receives up to about 8,000 petitions for a writ of certiorari each term and agrees to hear about 80 cases a year—a one percent chance. However, according to Poe’s calculations, based on a study he conducted about two years ago, the percentage of of cases actually heard is closer to 3.2 percent.
Still, when news broke that the Supreme Court had rejected the case, it came as a slap in the face to many miners who were hoping for a final victory.
“It’s unfortunate,” Poe said. “It’s a property rights issue. It’s a mining rights issue. You’ve got Brandon Rinehart, a guy with a family who is out there trying to make money off his real property mining claim, and he’s a lone guy against the big, bad government, which is typically a very ripe case for SCOTUS. So, for them to decline to hear the case is really disheartening.”
Both PLP and AMRA have expressed their thanks to Rinehart for standing his ground throughout the entire five-year legal process.
Despite the deeply disappointing news, Kliewer and Poe urged miners to continue supporting the fight for mining rights, which hinge on federal preemption and the Mining Law of 1872. Federal preemption refers to the Supremacy Clause of the U.S. Constitution which states that federal law is the ‘supreme law of the land’ and thus preempts state laws.
“It really boils down to federal preemption,” Poe said “Can a state create a de facto ban or prohibition that interferes with federal law? It’s very similar to the sanctuary cities issue, where the states are ignoring federal law.”
Not only are there sanctuary cities, but California has recently declared itself a sanctuary state and has legalized the recreational use of marijuana in defiance of federal laws.
“At some point, you would think the Supreme Court would take on these cases to determine whether federal preemption is a valid argument or a valid law, or not.”
Because the Mining Law of 1872 is a federal law, miners contend it should supersede any state law that bans suction dredge mining. Dredging is legal under federal law and in most states.
Though this isn’t the first time miners have found themselves in a legal quandary, the Rinehart case has been a learning experience and a wake-up call to miners that they will have to step up their game if they hope to protect their right to mine.
With the Rinehart case closed, PLP will explore new avenues to fight California’s dredging ban and other land rights restrictions, Kliewer said.
“We need to regroup and talk to our legal counsel, and it’s obvious that miners need to get better at lobbying, and not just at the state level but at the federal level, which is what PLP and the MMAC project have been doing, but on a shoestring budget,” Kliewer said. “We’re quite a few years behind the environmentalists when it comes to lobbying. Obviously, that’s where we need to be focused to eradicate multiple layers of regulations from multiple agencies.”
Legislation versus litigation
In the last few years, PLP has worked closely with MMAC to lobby for mining rights in Washington, D.C., though Kliewer admits lobbying can be just as slow and expensive as the court system to get results.
“It takes a long time,” he said. “It’s not something that happens overnight.”
Just recently, the lobbying efforts may be showing some return on investment in the way of a mining related executive order, Kliewer said.
The Trump card
President Donald Trump signed an executive order
Dec. 20, 2017, directing his deputies to devise “A Federal Strategy to Secure Reliable Supplies of Critical Minerals” used in the production of everything from smart phones to weaponry. The strategy is intended to reduce American reliance on critical minerals, most of which are currently imported.
The directive came a day after the U.S. Geological Survey published its first analysis of domestic critical mineral resources since 1973, an assessment the agency began in 2013. The “Critical Mineral Resources of the United States—Economic and Environmental Geology and Prospects for Future Supply” report
concludes that 20 out of the 23 critical minerals which the U.S. needs now come from China.
“The United States must not remain reliant on foreign competitors like Russia and China for the critical minerals needed to keep our economy strong and our country safe,” Trump said in a statement.
“The executive order that Trump signed and incorporated some of the language from MMAC’s proposed mining legislation,” Kliewer said. “It wasn’t the whole MMAC bill, but it was parts of the bill.”
Kliewer said he is hopeful that some of MMAC’s PLP-backed lobbying efforts will provide some regulatory relief in 2018.
The executive order is at least partial proof that the efforts of PLP and MMAC to make inroads in Washington have produced positive results, Kliewer said. But, there is no doubt that the “deep state” political operatives loyal to former President Barack Obama’s anti-mining agenda are obstructing Trump every step of the way.
“Trump can’t do everything himself,” Kliewer said. “There are too many moles in the system left over from Obama’s reign. It’s too hard to affect change on all levels in one year. You just can’t do it. You can’t turn a battleship that fast.”
AMRA has also stepped up its efforts to keep to meet with select senate and house committees on natural resources on Capitol Hill, Poe said.
“We’re not going there to lobby … We’re going there to explain the reality of what is truly transpiring in this country to the lawmakers who are supposed to making decisions on our behalf,” Poe said.
Rather than write bills of push for specific legislation, AMRA’s first goal is to inform committee members about the tyranny and abuse miners have suffered under out-of-control state and federal agencies operating in the backcountry where miners live and work, he said.
“Our voice needs to be heard and we’re going to do whatever it takes to make that happen ... Something has to be done about these rogue states to bring relief … I mean they just don’t really care about federal law,” Poe said. “Good grief. It’s gotten to the point now where you’ve got these state agencies like the California Department of Fish and Wildlife out there saying that if you drive your truck down to the river and you’ve got a gold pan in it that’s aiding in the processing of material and under SB 637 it’s illegal.”
AMRA has been sending letters to the White House for several months asking for relief from overregulation and casting allegations of miners being bullied by the U.S. Forest Service.
“Trump answered my letters in August,” Poe said. “That prompted a conference call with the head of the U.S. Forest Service over allegations I included in my letters to Trump. And, just recently we’ve seen a dramatic change in the attitude of the Forest Service, especially up in Idaho.”
More recently, Poe said he has received a letter from the head of the Bureau of Land Management in Washington, D.C.
“In the letter, it states: ‘I have been instructed by President Trump to contact you on his behalf concerning the letters you have sent him … ’ So, we do have a line of communication with president Trump and it is getting results,” Poe said.
Poe didn’t want to disclose further details of the letter, but said that it’s encouraging to get a response. He encourages all miners to write letters to Trump and his administration in an effort to reclaim mining rights.
Both Kliewer and Poe said in separate phone interviews that they are encouraged by the GPAA and the role it has played in supporting mining rights over the years.
“We’ve been partners going back to ’09,” Kliewer said. “We’re glad GPAA was in the fight and we’re happy to hear GPAA intends to stay in the fight.”
“I look forward to working more closely with the GPAA in this epic struggle for our mining rights,” Poe said.
CEQA and Bohmker cases
AMRA is now weighing the options of throwing its support behind two other cases—the CEQA case and another case involving Oregon gold miner Tom Bohmker.
The Bohmker case is similar to Rinehart’s, but the Bohmker case was filed in federal court which is where the Rinehart case should have been heard, Poe said.
“I think AMRA going forward is going to throw all of our weight behind those two cases, in particular,” Poe said. “It looks like we will likely pursue that.”
The CEQA case
PLP received news in December that the California Superior Court Judge Gilbert Ochoa had dismissed a PLP lawsuit known in mining circles as the CEQA case. It centers around a flawed study under the California Environmental Quality Act, which requires state and local agencies to identify significant environmental impacts and to avoid or mitigate those impacts, if feasible. The CEQA case had initially involved two separate lawsuits:
• The Karuk Tribe, Center for Biological Diversity, Environmental Law Foundation, Pacific Federation of Fisherman’s Associations and Friends of the River had alleged that the regulations adopted in March 2012 were not developed in accordance with the California Environmental Quality Act, fail to mitigate identified impacts and are inconsistent with existing state law. The case was filed April 3, 2012 in Alameda County Superior Court. However, in 2015, the state of California offered to pay $350,000 to this coalition of environmental groups to drop their lawsuit over the California Department of Fish & Wildlife’s 2012 suction dredge mining regulations. And, they did, sticking California taxpayers with the bill.
• Public Lands for the People also sued the state, alleging that the Subsequent Environmental Impact Report, which was based on reports from Horizon Water and Environment, a consulting firm based in Oakland, Calif., was improperly and unlawfully conducted and therefore rendered skewed, unscientific findings. PLP contends the 2012 dredging regulations were based on bad science from a deeply flawed environmental report.
“The SEIR results were used to prop up the case for far more restrictive suction dredge mining regulations because of pressure from these environmental groups,” said Walt Wegner, who was PLP President at the time. “The SEIR study claims that suction dredge mining has several ‘potentially significant impacts’ on the environment, even though all previous studies had concluded that dredging causes a ‘less than significant impact.’ ” How does this drastic change in study results happen overnight? The study is bogus and heavily influenced by politics—not science.”
PLP hasn’t decided if it will appeal the CEQA case or not., Kliewer said.
“There are no definite plans to go forward with it, yet,” he said. “But, I don’t see any other choice but to appeal. The problem is that in California we can’t get a fair shake. The whole system is rigged against us. That was obvious with the Rinehart case all the way up to the California Supreme Court.”
Brad Jones is a freelance writer based in Southern California. He can be reached at AmericanLibertyPost@gmail.com
President Donald Trump’s executive order:
“A Federal Strategy to Secure Reliable Supplies of Critical Minerals”
U.S. Geological Survey report:
“Critical Mineral Resources of the United States—Economic and Environmental Geology and Prospects for Future Supply”
PLP website: www.PublicLandsForThePeople.org
AMRA website: www.AmericanMiningRights.com
WMA website: www.TheMiningAlliance.com
MMAC website: www.mineralsandminingadvisorycouncil.org
SCOTUS website: www.supremecourt.gov/about/faq_general.aspx
Write or call the White House: https://www.whitehouse.gov/get-involved/write-or-call/
Solicitor General’s amicus curiae brief: https://www.supremecourt.gov/DocketPDF/16/16-970/22901/20171206191927741_16-970%20--%20Rinehart%20v%20California.PDF
Letter to President Donald Trump: http://www.goldgold.com/wp-content/uploads/2017/12/Letter-to-President-Trump-12-8-17.pdf
Background articles and links:
Brad Jones is a freelance writer based in Southern California. He can be reached at AmericanLibertyPost@gmail.com