By BRAD JONES
GPAA Managing Editor
After years of legal wrangling, California Superior Court Judge Gilbert Ochoa has ruled the state cannot undermine federal law by banning the use of gold suction dredges.
Public Lands for the People 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 he is "extremely happy," with Ochoa's decision.
Wegner was elected president of the mining rights organization in mid-January following the death of longtime PLP President Jerry Hobbs in late December.
After reviewing the 21-page ruling with PLP attorney David Young, Wegner said in an official statement:
"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."
Wegner also thanked the Gold Prospectors Association of America and its chapters as well the Lost Dutchman's Mining Association, and other mining groups that have helped in the fight to end the dredging ban
"We would not have been able to fight this fight without the financial support from GPAA and LDMA. They have been the No. 1 contributor to support this battle over the past five years. Thank you GPAA and LDMA," Wegner said.
PLP has been fighting tirelessly against the statewide suction dredging ban since it was imposed in 2009 and is a plaintiff in the ongoing court-ordered Mandatory Settle Conference that Ochoa ordered last May.
"A win for PLP is a win for the small-scale mining community and all public land users," Wegner said.
The Judge's Ruling
Besides citing the 1872 Mining Act in his ruling, Ochoa cited the Supremacy Clause of the U.S. Constitution, which states that federal law supercedes state law as "the supreme law of the land."
Referencing other cases in which states have in the past unsuccessfully attempted to skirt federal mining law, Ochoa writes: "The general rule is the 'where state law stands as an obstacle to the accomplishment the full purposes and objectives of Congress,' it is preempted."
Ochoa continues in his ruling to cite Perez v. Campbell, decision which states: " 'any state legislation which frustrates the full effectiveness if federal law is rendered invalid by the Supremacy Clause' regardless of the underlying purpose of its enactors."
"PLP makes essentially the same arguments," Ochoa wrote in his ruling.
Ochoa also mentioned the argument of the New '49ers: "The New '49ers acknowledge that the State of California has lawful power to enact reasonable environmental regulations that do not materially interfere with mining regulations (Granite Rock), however, the New '49ers argue that the State cannot lawfully require permits and then refuse to issue them, forbid mining entirely in certain areas, or require miners to participate in a lottery to obtain a very limited number of permits."
Wegner applauded Ochoa for recognizing miners' congressionally granted right to mine and taking a stance against the state's 'scheme' to prohibit dredging.
"This is a great ruling in our favor ... They can't stop us from dredging," he said.
PLP's arguments
PLP (www.plp1.org) has argued several points before the Judge Gilbert Ochoa during the six consolidated cases over the statewide dredging ban over the years:
n Miners and prospectors on federally managed land have a statutory right; not just a mere privilege;
n Administrators may not unreasonably restrict or prohibit, temporarily or permanently, the exercise of that right;
n The issuance of a permit from California Department of Fish & Wildlife is a non-discretionary act;
n Senate Bill 670, Assembly Bill 120, Senate Bill 1018 and the [proposed] 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;
n 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.' 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," Wegner said.
Can You Dredge in California?
Despite the court ruling, it remains unclear when dredgers will be allowed back in the water or what types of regulations they will face.
"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 CDFW. 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."
What Happens Next?
Negotiations between miners, the state, environmental groups, and their attorneys continued Jan. 23. The judge has requested that all parties involved in the ongoing Mandatory Settle Conference propose fair regulations based on his ruling, which clearly states that suction dredge miners have the right to dredge under the federal mining laws.
Though waters remain muddy on how the dredging regulations will pan out, the intent of Ochoa's strongly-worded ruling rejects the state's "scheme" to require suction dredge permits, and then not issue them as unconstitutional.
"I think they are starting to get the picture," Wegner said.
New '49ers attorney James Buchal also called the ruling a win for miners.
"It's a win, but it would be a lot better if the judge would order the state to start issuing permits instead of just saying the scheme is illegal. We are all supposed to work together to create an agreed upon proposed order that mirrors his ruling," Buchal said.
"By ruling as he did, the judge clearly signals his view that the dredgers should have a reasonable opportunity — under some kind of regulations — to dredge," Buchal said. "But, the problem is we don't know precisely what happens next."
As of press time, no date had been set for the Mandatory Settlement Conference to reconvene.
In the meantime, PLP will prepare its proposed court order and submit it to the court by Jan. 30, Wegner said
"PLP will produce a proposed order of the court for the judge to sign based on his ruling, and the judge will produce his recommendations for proposed regulations in the near future."
The Water Board
Last year, PLP warned dredgers that if or when they won the case and got back in the water to be wary of the California State Water Resources Control Board threats to interfere with dredging. The PLP tried unsuccessfully to enjoin the water board in the Mandatory Settlement Conference to prevent dredgers from being further impeded.
Rinehart Case Moves to Supreme Court
Meanwhile, the state of California petitioned the Supreme Court of California to review the People v. Rinehart case.
Brandon Rinehart is a gold miner who was convicted of dredging without a permit on his own mining claim and was sentenced to a pay a $600 fine and three years probation. Later, that conviction was overturned by the California Third Court of Appeals and sent back to the lower court.
The appellate court judges claimed the lower court had not allowed evidence on the issue of federal preemption and federal mining laws.
In mid-January, the Supreme Court accepted the Rinehart case for review, which automatically "depublishes" the Third Court of Appeals opinion, according to Buchal, who represents the New '49ers and Rinehart in the case.
This means the appellate court's opinion in the Rinehart case can no longer be cited in the lower courts unless or until the Supreme Court decides to allow publishing, Buchal said.
While "anything is possible," Buchal doesn't expect the Supreme Court to allow the appellate court's opinion to be published.
Though he cites the Rinehart case in his Superior Court decision, Ochoa ruled before the appellate court opinion was depublished and before the Supreme Court of California had granted a review of the Rinehart case.
Buchal said he doesn't expect the Rinehart case to sway Ochoa's ruling on federal preemption.
"The state may attempt to get him to change his mind, but we don't think he is going to change his mind," Buchal said.
View the actual court ruling (pdf)
Read the full official statement from PLP President Walt Wegner (pdf link)
Brad Jones is the Managing Editor / Communications Director for the Gold Prospectors Association of America and the Lost Dutchman's Mining Association. He can be reached at bjones@goldprospectors.org
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