By Brad Jones
GPAA Managing Editor
---UPDATE---
California Superior Court Judge Gilbert Ochoa has issued a long-awaited court order on federal preemption in the ongoing legal battle over the statewide suction-dredge mining ban since the original two-year "moratorium" was imposed in 2009.
The court order is follow-up to Ochoa's ruling on federal preemption in January. The court order, dated May 1, 2015 was issued exactly one year after Ochoa ordered a Mandatory Settlement Conference between gold miners, the California Department of Fish and Wildlife and environmental groups.
Last May, miners packed the courtroom as a show of their opposition to the state's illegal dredging ban, which even the judge called an "extraordinary scheme" by the state to require suction dredge permits and then refuse to issue them.
The court order states: "The court finds there is no triable issue of material fact 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 pursuant to Fish and Game Code section 5653.1 refusing 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 California Coastal Commission v Granite Rock Co (1987) 480 U.S. 572 and a de facto ban. This de facto ban created by Fish and Game Code section 5653.1 on suction dredge mining permits has rendered commercially impracticable the exercise of plaintiffs'/petitioners' mining rights as granted by the federal government."
Public Lands for the People President Walt Wegner said the court order is essentially the same as Ochoa's January ruling that the state is violating federal mining laws, and hence the Supremacy Clause of the U.S. Constitution.
In an official statement issued May 8, Wegner said PLP had hoped the court order would have provided some "injunctive relief" to prevent the California Department of Fish and Wildlife from enforcing the dredging ban "until the adoption of regulations that do not materially interfere with out federally granted mining rights."
"The judge did not order the state to act or not act," Wegner said. "His order is the same as his ruling ... Unfortunately, he did not sign the order that PLP had submitted for him to sign, which would have given the miners injunctive relief immediately."
"Issue a permit or leave us alone," he said. Meanwhile, the New '49ers and PLP will file for an injunction against the state in Superior Court, with a hearing expected on June 23. The proposed injunction would prevent the state from issuing citations to dredgers and confiscating their equipment until new regulations are in place, Wegner said.
On May 5, the California Department of Fish and Wildlife posted on its website a notice warning dredgers that it is still unlawful to dredge, despite the May 1 court order.
Wegner said the state appears to be thumbing its nose at the court.
"The state is acting like the judge's ruling that the state is preempted by federal law doesn't even exist. They are totally disregarding his ruling ... They can't do what they are doing and the state is doing it anyway," he said.
- Read the full court order here -
Check back for more details.
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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