From Gold Prospectors magazine January/February 2015 issue
By Brad Jones
GPAA Managing Editor
The hearing was part of the ongoing Mandatory Settlement Conference that Judge Gilbert Ochoa ordered May 1 last year in an attempt to resolve the legal battle over suction dredge mining, which was banned by the state more than five years ago.
Miners argue that the state has no authority to ban suction dredge mining under the federal Mining Law of 1872 and the Supremacy Clause of the U.S. Constitution, which declares that federal law is the supreme law of the land.
The settlement conference is the culmination of years of litigation involving more than a half-dozen or so consolidated lawsuits that are being heard by Ochoa in San Bernardino.
Ironically, a separate case, the Brandon Rinehart case has become pivotal in the decision.
Rinehart, a gold miner, was cited for dredging without a permit on his own mining claim in 2012, three years after the state refused to issue them. He was not allowed to present all the evidence in his case before the court and was found guilty of dredging without a permit.
He appealed the decision and the Third Court of Appeals overturned the conviction. The appellate court judges sent the case back to the lower court, with its opinion unpublished.
In its unpublished opinion, the appellate court said in essence that the state cannot override federal mining rights. The miners sent hundreds of letters to the appellate court's three-judge panel, requesting to have the court opinion published. The court heeded the miners' request, agreeing to publish the Rinehart case.
Publication of the case is significant in the sense that a published case can be cited in other cases, whereas an unpublished or depublished case cannot.
Miners had hailed publication of the Rinehart case as a small victory in the hopes of citing the Rinehart case in the Mandatory Settlement Conference, which also hinges on federal preemption.
However, the state has since petitioned the Supreme Court of California to revisit the Rinehart case, and to depublish the appellate court's findings.
In the Mandatory Settlement Conference, California Fish and Wildlife, the Karuk Indian Tribe and the Center for Biological Diversity lawyer who is supporting the Karuks requested that there be no rulings from Ochoa and that the Mandatory Settlement Conference continue.
Public Lands for the People spokesman Ron Kliewer, who is a plaintiff in one of the consolidated dredging cases accused the Karuks of stalling in the hopes the Supreme Court of California will accept California Fish and Wildlife's petition for an appeal and to depublish the Rinehart case.
"Ochoa responded that he intends to use the Rinehart case, now that it has been published, to give the court direction. Ochoa said he will rule on the federal preemption issue according to the Rinehart case, and let the chips fall where they may," Kliewer said.
Kliewer said Ochoa agreed with PLP attorney David Young that two legal tracks are a good idea, adding he would rule the first week of January 2015.
"Judge Ochoa did give clear indication that will be in his statements about the Rinehart case. Since it was currently published, he is free to reference it in his decision, even though the Supreme Court of California may hear the Fish and Wildlife's appeal to have it depublished in the future," Kliewer said. "Ochoa wants the case to go forward, and right now there is clarity of direction. This is tremendously good news for the miners. This has been a long, hard expensive fight, and though it is far from over, we are making some serious, long term legal wins for miners not only in California, but across the country."
Other developments
Meanwhile, Ochoa denied PLP's request to enjoin the California Water Resources Control Board in the Mandatory Settlement Conference.
"The miners had requested this be done since the water board will insist on reconsidering everything that was accomplished in the settlement conference," Kliewer said. "We know this because they have stated in writing that they oppose dredging, period."
However, Ochoa did rule in the miner's favor by lifting the stay on ruling on the motion for summary judgment. This will allow him to rule on federal preemption, based on the legal precedent of the Rinehart case.
"The judge made it known he will make his ruling without further oral argument in early January," Kliewer said.
The Mandatory Settlement Conference will reconvene Jan. 23 at 10 a.m. in San Bernardino. The courtroom is open to the public, but the settlement conference itself is closed to the public, typically held in the judge's chambers or a conference room.
On the 'Net
Know Your Rights
- Mining Law of 1872
http://en.wikipedia.org/wiki/General_Mining_Act_of_1872 - Supremacy Clause
http://en.wikipedia.org/wiki/Supremacy_Clause - Public Lands for the People
http://plp1.org - Gold Prospectors Association of America
goldprospectors.org
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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