In the previous post an error was made, it seems that in California the statue of limitations for takings action may only be 6 months not 6 years. I also had some more information to minimize any confusion. This is to add to the answer to Marks post.
In response to Mark's inquiry:To understand where we are now, it is important to understand the history of subsection (b)(1) of 14 CCR 228; that is the subsection which allows one to obtain a special suction dredge permit to operate a suction dredge with a larger nozzle size than allowed, in a designated closed water, or outside of the designated season.
April 1994 - The Original EIR to support the Suction Dredge Regulations is approved. It supported, amongst other things, 14 CCR 228(b)(1).
May 1994 - 14 CCR 228(b)(1) is enacted which allows one to obtain a special suction dredge permit to operate a suction dredge with a larger nozzle size than allowed, in a designated closed water, or outside of the designated season.
January 2000 - the Attorney General (AG) issues an Opinion that 14 CCR 228(b)(1) is in conflict with its enabling statute, Fish & Game Code § 5653. Fish & Game Code § 5653 allows DFG to publish suction dredge regulations.
April 2001 - DFG issues an emergency rule amending14 CCR 228(b)(1), deleting it, premised upon said AG's Opinion.
August 2001 - DFG's emergency rule amending14 CCR 228(b)(1), deleting it, is repealed by OAL because DFG failed to transmit to them the required Certificate of Compliance and the prior rule is reinstated back to the way it was on April 2001.
December 2005 - DFG publishes what they called an Informational Statement, allegedly, informing the public that they will not approve any special suction dredge permits, applied for pursuant to 14 CCR 228(b)(1).
May 2006 - Eason files his Complaint against DFG challenging said Informational Statement as being an "underground regulation"; that, DFG failed to put it out for public comment, amongst many other things they failed to do.
July 2006 - DFG publishes a second Informational Statement, allegedly, informing the public that they will not approve any special suction dredge permits, applied for pursuant to 14 CCR 228(b)(1).
August 2006 - Eason Amends his Complaint challenging said second Informational Statement as being an "underground regulation".
September 2007 - Judge Connelly rules that DFG's Informational Statements of 2005 and 2006 are both underground regulations and declares them void. Judge Connelly also ruled that 14 CCR 228(b)(1) is in conflict with its enabling statute and must therefore be amended. Judge Connelly orders DFG to comply with the proper procedures in amending the suction dredge regulations and to do so within 10 days after he issues his Final Judgment which he has not issued yet.
Mark is correct in that the current proposed Amendment to 14 CCR 228, if enacted, would render the Original (1994) EIR inadequate. As a consequence thereof, the Original EIR would have to be supplmented. To compel DFG to do this, prepare a subsequent EIR premised upon these new circumstances, they will probably have to be sued.
If the assumption is that some suction dredge mining operations will still be grandfathered in after DFG Amends 14 CCR 228, this is not true. Any grandfathering, if it did exist, will be lost after DFG's proposed Amendment to 14 CCR 228 is enacted.
If the assumption is that a validity examination is voluntary, (if and when one goes for patent), this is not true. All un-patented mining claims are subject to being declared invalid, after contest; and, at any time. BLM has been and will continue to contest the validity of un-patented mining claims that appear to be invalid. When BLM contest the validity of an un-patented mining claim, the court orders a validity examination be performed. It, the validity examination, is therefore not voluntary. All un-patented mining claims on waters of the State will appear to be invalid if DFG's proposed Amendment to 14 CCR 228 is enacted. As all those un-patented mining claims will appear to be invalid, BLM will certainly contest their validity, and just after the six month statute of limitation expires to overturn that regulation.
If the assumption is that it is enough for one person (with a four inch dredge) to pass a validity examination that is enough to allow DFG to get away with it, this is not true. Which miner is going to be the last miner standing; you? Not likely! Anyway, it is ridiculous to say that someone can pass a validity examination with a four inch dredge when no one who has tried has done so.
If the assumption is that BLM utilizes the value of gold, today, to perform their validity examinations, this is not true. The law requires BLM to use an average price of gold over the prior 10 year period in their validity examinations.
Mark is correct in that if DFG makes a regulation which restricts one to mine with a four inch dredge that is a regulatory taking of their un-patented mining claim. Because, in the past, one could obtain a special suction dredge permit to mine with a large nozzle size, larger than four inches, one could not win a takings action. However, if DFG's proposed Amendment to 14 CCR 228 is enacted, all un-patented mining claims on waters of the State will have been taken. To win a takings action, of course, you will have to file one; and, within the statute of limitations to do so, six months. This is best done as a class action suit for reasons that I will explain later.
I will be adding a example of a set of comments I sent in on a new thread. I will also include the importance of sending in your own comments.
Thank You
Walter Eason
as an individual
Board Member of:
Equal Access To Justice
National Outdoor Recreation Council
America's Mining and Prospecting
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