Appellate court rules in favor of miner

 

The Third Appellate Court of California issued a unanimous decision Sept. 27 in the People v. Rinehart to reverse Brandon Rinehart's conviction for suction dredging without a permit. 

Dave McCracken of the New '49ers has issued a statement suggesting the appellate court's choice to kick the case back down to the lower court is a positive development in the ongoing fight for mining rights on public lands in the western United States.

"This is a huge win for our side, which I believe, will go a long way towards getting us a reasonable set of dredging regulations in California for the 2015 season and beyond. I also predict this will, in a roundabout way, help eliminate Oregon's moratorium which is set to begin in 2016," McCracken stated in the release.

While McCracken called the court ruling "the biggest legal win for our side since the beginning of all the legal battles about 10 years ago," the jury is still out on whether the decision will have an impact on the fate of suction dredge mining in California and other western states.

 

Public Lands for the People, the mining rights group that backed Rinehart and retained Attorney James Buchal to help fight the case, is not ready to break out the champagne — at least not yet. 

PLP President Jerry Hobbs said he is cautiously optimistic, but disagrees with McCracken's claims that "the Third Appellate Court of California issued a unanimous decision [Sept. 27] confirming our arguments that a state agency does not have the authority to materially interfere with commercial mining programs on the public lands."

The actual court decision does not go that far, but instead simply reverses the conviction in which Rinehart was fined $600 and sentenced to three years probation, Hobbs said.

However, in the court decision, the appellate court did state that one of the reasons the case was kicked back is that evidence relevant to the federal preemption of state law was disallowed during Rinehart's trial. The appellate court suggested that the evidence and arguments pertaining to federal preemption should have been heard in the lower court.

More importantly, the appellate court appears to have alluded that it would rule in favor of federal preemption if the case ended up back in appeals, which seems to send a strong message to the lower courts, Hobbs said.

"There appears to be light at the end of the tunnel," he said. 

Rinehart was charged for dredging without a permit June 16, 2012 in Plumas County National Forest on his own placer mining claim, called "Nugget Alley." The claim was valid and registered with the U.S. Bureau of Land Management as CAMC0297113.

Essentially, Rinehart argued that he could not obtain a permit because the state of California quit issuing suction dredge mining permits in 2009 under Senate Bill 670, which imposed a "two-year" statewide dredging moratorium across the state. 

"The state cannot require the impossible under maxim of law," Hobbs said. "In California, you have the right to mine, but you can't get the permit. The state can't do that, legally."

Meanwhile, California's statewide suction dredge mining moratorium has been extended under various anti-mining legislation ever since. Mining groups, such as the New '49ers and PLP and the Western Mining Alliance, are still in court fighting the moratorium, which they contend has become an outright ban and a violation of their rights under the Mining Law of 1872. 

Since an open court hearing May 1, PLP and other mining groups have been bogged down in court-ordered Mandatory Settlement Conference hearings with the state and environmental activist groups for more than six days throughout the summer. 

At press time, two more Mandatory Settlement Conference hearings were set for Oct. 1 and Nov. 14 before California Superior Court Judge Gilbert Ochoa. 

The dredging ban case hinges on the issue of federal preemption, which means that federal law preempts state law. The Supremacy Clause, a provision in Article Six of the U.S. Constitution, Clause 2, established the U.S. Constitution, federal statutes and U.S. treaties as "the supreme law of the land." The text provides that these are the highest form of law in the U.S. legal system, and mandates that all state judges must follow federal law when a conflict arises between federal law and either the state constitution or state law of any state.

PLP Vice President Walt Wegner said the appellate court's decision in the Rinehart case is a step in the right direction.
"It's not a slam dunk, but it's a huge win. It really is," Wegner said. "It's likely going to affect what happens in the Mandatory Settlement Conference." 

However, since the appellate court ordered the case not to be published, it cannot be used in other cases before the courts.
Miners, including PLP, Western Mining Alliance, New '49ers and some Gold Prospectors Association of America members have since been rallying to petition the courts requesting that the decision be published so the Rinehart case can be cited in other court hearings.

Steve Kleszyk, a plaintiff in the California dredging case, and a spokesman for the New '49ers said on Sept. 30 that miners want the case published and that the Third Court of Appeals has received four letters from miners requesting publication in the Rinehart case.
"The small-scale mining community has banded together to request that the Brandon Rinehart case be published," Kleszyk said. 
Wegner said that in both the Rinehart and California dredging ban case, everything seems to hinge on the issue of federal preemption. 

"Without a ruling on federal preemption, the state legislators can ban us from dredging anytime they want," Wegner said.
Also on Sept. 30, Judge Ochao held an ex parte hearing to request that the California State Water Resources Control Board be enjoined in the Mandatory Settlement Conference. That hearing is set for Nov. 14, Wegner said.

Court Decision: http://www.goldgold.com/wp-content/uploads/2014/09/opinion-9-23-14.pdf