By Brad Jones
GPAA Managing Editor
After years of legal wrangling, California Superior Court Judge Gilbert Ochoa has ruled that the state cannot undermine federal law by banning the use of gold suction dredges.
Public Lands for the People (www.plp1.org) has applauded the federal preemption ruling which was handed down Monday, Jan. 12.
The court ruling states: "On its motions for summary adjudication, the court finds there is no triable issue of material on the issue of federal preemption and that as a matter of law and in actual fact, that the State's extraordinary scheme of requiring permits and then refusing to issue them whether and/or being unable to issue permits for years stands 'as an obstacle to the accomplishment of the full purposes and objectives of Congress' under "Granite Rock and a de facto ban."
PLP President Walt Wegner said Thursday that PLP is "extremely happy," with Ochoa's decision.
Wegner was elected president of the mining rights organization following the death of longtime PLP President Jerry Hobbs in late December. After reviewing the 21-page ruling with PLP Attorney David Wegner issued the following statement:
"For those of you who are not aware, we lost our president and our most courageous advocate, Jerry Hobbs, on Dec. 28, 2014. Jerry will be sorely missed. I am honored to take over where Jerry left off. I am grateful for the time we spent together, what he taught me and the experience I gained by watching his actions over the years. I am also grateful for the new board of directors that have stepped up to support PLP as we move forward. Jerry left us with very special gift. On Jan. 12, 2015 Judge Ochoa ruled in PLP's favor regarding federal preemption overriding the State's blanket prohibition on suction dredge mining. PLP is very excited about this ruling and I know Jerry would be too. We would have not achieved this victory without Jerry Hobbs. We would not have been able to fight this fight without the financial support from [Gold Prospectors Associaiton of America and the Lost Dutchman's Mining Association.] They have been the #1 contributor to support this battle over the past five years. Thank you GPAA/LDMA! In addition Keene Engineering, Prospecting and Mining Journal, American Prospector and Treasure Seeker, Gold Cube, Jobe Tools, MineLab, White's and Fisher are all major contributors to our cause and we Thank You! We are especially grateful to the individuals and clubs who are members of PLP for your support for all these years. PLP wishes to thank everyone. A win for PLP is a win for the small-scale mining community and all public land users."
PLP has been fighting against the statewide suction dredging ban for more than five years and is a plaintiff in the ongoing court-ordered Mandatory Settle Conference that Ochoa ordered last May.
What does this ruling mean for the small-scale miner?
PLP argued several points before the Judge Gilbert Ochoa:
- Miners and prospectors on federally managed land have a statutory right; not just a mere privilege;
- Administrators may not unreasonably restrict or prohibit, temporarily or permanently, the exercise of that right;
- The issuance of a permit from CDFW is a non-discretionary act
- SB670, AB120, SB1018 and the 2012 regulations are prohibitory, not regulatory, in their fundamental character and that they are in direct conflict with federal laws and violate the Supremacy Clause and Article IV of the United States Constitution.
- And, on a federal mining claim where a waterway runs through it, that a suction dredge is the only viable, economic and environmentally sound manner to recover placer gold.
"In the Judge's ruling he declared that 'prevailing parties to prepare notice and order' Wegner said. "That means that PLP, as one of the prevailing parties, will write the order of the court, file it with the court and upon approval of the judge, he will sign it. Once again, PLP is very pleased with this, while the State and the environmental extremists appear to be very frustrated with this."
Negotiations between miners, their attorneys and environmental groups are scheduled to reconvene Jan. 23 to discuss reasonable dredging regulations.
"The momentum is clearly on our side," Wegner said in his statement. "Now, the question is, 'Can we go dredging?' That, as far as the State is concerned, is still illegal. As far as federal law goes, you have statutory rights to mine that cannot be preempted or prohibited by an arbitrary State action. Since the State still does not concede your right to suction dredge mine, despite Judge Ochoa's ruling, the individual will have to determine what actions to take or not to take at this time. PLP strongly recommends that if an individual should decide to exercise one's federally granted rights that one should first apply for a suction dredge permit from [California Department of Fish and Wildlife]. If you are denied a permit, record the date, time, location and the name of the CDFW official that has denied your request. This will be valuable in the event that one is cited by either a federal or state agency."
View the actual court ruling (pdf)
Read the full official statement from PLP President Walt Wegner (pdf link)
Watch for more updates as more details as this court ruling unfolds. A full news article will be published in the February/March edition of the Pick & Shovel Gazette.
Gold Prospectors Association of America and Lost Dutchman's Mining Association members are asked to submit any questions they may have by email to Managing Editor/Communications Director Brad Jones at bjones@goldprosepctors.org
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