SB 670, A day of reckoning will come.

[old gold miner]

SB 670, A day of reckoning will come.
Maybe not tomorrow, next week, or even next month.
But, as sure as the sun rises each morning, it will come.

The fact that valid mining claim owners, plainly have enforceable private property rights is irrefutable. Simply stated; mining claim owners, own the right to mine their property, under reasonable regulation. Any regulation that arbitrarily prohibits mining, even temporary enforces a compensable “taking” of those private property rights guaranteed by Constitutional protections.

The Fifth Amendment of the U.S. Constitution requires government to compensate citizens for the taking of private property. Under U.S. Supreme Court rulings, this constitutional takings clause requires government agencies to pay compensation to property owners for regulations that “go too far” in depriving owners of economically beneficial use of their property.

The doctrine of regulatory takings places a limit on the police power, one rooted in the Fifth Amendment to the U.S. Constitution, which states, “nor shall private property be taken for public use, without just compensation.” In the 1922 Pennsylvania Coal Co. v. Mahon decision, the U.S. Supreme Court ruled that this “takings clause” could be applied not only to physical seizure of property, but also to land use regulation: “while property may be regulated to a certain extent, if regulation “goes too far” it will be recognized as a taking.”

Beginning in 1987, the U.S. Supreme Court issued a series of decisions on regulatory
takings that strengthened these protections. The rulings expanded the ability of private property owners to seek compensation from government for regulations, that “go to far”.

Subsequent decisions, such as those in the Agins and Lucas cases, have made it clear that a regulation totally eliminating economically viable use of a property will be considered a compensable taking. Of particular importance were the First English, Nollan, and Dolan decisions. The key principles established by these cases were:

1). Monetary damages for takings (the First English precedent): The government must pay monetary compensation for an unlawful taking, even a temporary one. Simply removing the offending regulation is not sufficient redress.

2).The “nexus” requirement (the Nollan precedent): In imposing exactions or other conditions on the approval of a development project, the government must show that there is an “essential nexus” that relates the public burden imposed by the development to the exaction or conditions imposed.

3). The “rough proportionality” requirement (the Dolan precedent): The magnitude of
exactions imposed on a development project must be “roughly proportional” to the size of the public impact that the exactions are intended to mitigate.

CEQA PRC 15126.4 (4)
(4) Mitigation measures must be consistent with all applicable constitutional requirements, including the following:

(A) There must be an essential nexus (i.e. connection) between the mitigation measure and a legitimate governmental interest. Nollan v. California Coastal Commission, 483 U.S. 825 (1987); and

(B) The mitigation measure must be “roughly proportional” to the impacts of the project. Dolan v. City of Tigard, 512 U.S. 374 (1994). Where the mitigation measure is an ad hoc exaction, it must be “roughly proportional” to the impacts of the project. Ehrlich v. City of Culver City (1996) 12 Cal.4th 854.

(5) If the lead agency determines that a mitigation measure cannot be legally imposed, the measure need not be proposed or analyzed. Instead, the EIR may simply reference that fact and briefly explain the reasons underlying the lead agency’s determination.

Section 21083, Public Resources Code. Reference: Sections 5020.5, 21002, 21003, 21100 and 21084.1, Public Resources Code; Citizens of Goleta Valley v. Board of Supervisors (1990) 52 Cal.3d 553; Laurel Heights Improvement Association v. Regents of the University of California (1988) 47 Cal.3d 376; Gentry v. City of Murrieta (1995) 36 Cal.App.4th 1359; Laurel Heights Improvement Association v. Regents of the University of California (1993) 6 Cal.4th 1112; and Sacramento Old City Assn. v. City Council of Sacramento (1991) 229 Cal.App.3d 1011.

“Under the Just Compensation Clause, where the government has "taken" property by a land use regulation, the landowner may recover damages for the time before it is finally determined that the regulation constitutes a "taking" of his property. The Clause is designed not to limit the governmental interference with property rights per se, but rather to secure compensation in the event of otherwise proper interference amounting to a taking.

A landowner is entitled to bring an action in inverse condemnation as a result of the self-executing character of the constitutional provision with respect to compensation. While the typical taking occurs when the government acts to condemn property in the exercise of its power of eminent domain, the doctrine of inverse condemnation is predicated on the proposition that a taking may occur without such formal proceedings. "Temporary" regulatory takings which, as here, deny a landowner all use of his property, are not different in kind from permanent takings for which the Constitution clearly requires compensation.

Once a court determines that a taking has occurred, the government retains the whole range of options already available -- amendment of the regulation, withdrawal of the invalidated regulation, or exercise of eminent domain. But where the government's activities have already worked a taking of all use of property, no subsequent action by the government can relieve it of the duty to provide compensation for the period during which the taking was effective. Invalidation of the ordinance without payment of fair value for the use of the property during such period would be a constitutionally insufficient remedy.” Pp. 314-322. See: First English Evangelical Lutheran Church v. Los Angeles County, 482 U.S. 304 (1987).

First English link:
http://www.law.cornell.edu/supct/html/h ... 04_ZS.html

The cornerstone of any successful takings claim is the owner’s contention that his or her “investment-backed expectations” were thwarted by a regulatory action (a principle enshrined in the U.S. Supreme Court’s seminal Penn Central decision).

Beginning August 6th 2009 SB 670 “prohibits” all small scale suction dredge gold mining statewide in California, for an indeterminable period of time. Premised on possible adverse environmental effects, as may or may not be determined by the CEQA project SB 670 imposes.

In that mining claim owners have a substantial investment, in both their mining claims, and suction dredge mining equipment; and, that small scale suction dredge gold mining is the only practical means by which such owners can profitable mine placer gold on their properties. SB 670 provisions “Prohibiting” that use unconstitutionally “takes” all beneficial use, those mining claim owners have. In that the victims here own, nothing more than the right to mine their properties.

Thus, when justice prevails, all such mining claim owners are clearly due compensation for their loss‘s during the period the mining prohibition is in place. Furthermore, in that any CEQA “mitigation” measure CDFG might, or may impose founded on CEQA findings that restrict, prohibit, or close any mining claim owners “right” to mine that is “inconsistent” with constitutional requirements. That would also constitute a compensable “taking”. In that CEQA mitigation requirements “must” be “consistent” with these clearly enumerated private property protections within the constitution.

Plainly stated, CEQA is a powerful environmental protection tool. But, not so powerful it can strike down, or set aside constitutional protections, all Americans have since the founding of this great nation. Justice will prevail. It may be slow in coming, adding insult to injury, but it will happen. I think the protection a valid mining claim owner has, is no better said than by the U.S. Supreme Court in 1892:

“In ordinary English, a "claim " is merely a demand for something, or an assertion of a right where the right has not been established. The phrase "mining claim" therefore probably connotes to most laymen an unsupported assertion or demand from which no legal rights can be inferred. But that is emphatically not so. In law, the word "claim" in connection with the phrase "mining claim" represents a federally recognized right in real property. The Supreme Court has established that a mining "claim" is not a claim in the ordinary sense of the word--a mere assertion of a right--but rather is a property interest, which is itself real property in every sense, and not merely an assertion of a right to property. Benson Mining & Smelting Co. v. Alta Mining & Smelting Co., 145 U.S.428 (1892)”.

Even though title to the fee estate remains in the United States, these unpatented mining claims are themselves property protected by the Fifth Amendment against uncompensated takings. See Best v. Humboldt Placer Mining Co., 371 U.S. 334 (1963); cf. Forbes v. Gracey, 94 U.S. 762, 766 (1876); U.S.C.A.Const. Amend. 5; North American Transportation & Trading Co. v. U.S., 1918, 53 Ct.Cl. 424, affirmed 40 S.Ct. 518, 253 U.S. 330; United States v. Locke, 471 U.S. 84, 107, 105 S.Ct. 1785, 1799, 85 L.Ed. 2d 64 (1985); Freese v. United States, 639 F.2d 754, 757, 226 Ct.Cl. 252, cert. denied, 454 U.S. 827, 102 S.Ct. 119, 70 L.Ed. 2d 103 (1981); Rybachek v. United States, 23 Cl.Ct. 222 (1991).

This possessory interest entitles the claimant to "the right to extract all minerals from the claim without paying royalties to the United States." Swanson v. Babbitt, 3 F.3d 1348, 1350 (9th Cir. 1990).

[russau]

i believe this is only the tip of the iceburg. this is spreading all over the Country! and very queitly i might add!