A absolutely HUGE win for California suction dredgers (and all of us, the prospecting/mining community at large) in the courts on 12 Jan 2015!!!!!
MANY thanks to all that helped get the Reinhart decision published, so Judge Ochoa could reference it numerous times in his decision. Now, we have about a month to wait and see IF the Kalifornia Supreme Court will hear or refuse to hear the State of Kalifornia's request to depublish the Reinhart decision. Personally, I think that train has left the station, as Judge Ochoa has already used it in our favor!!!
I read all 20+ pages of Judge Ochoa's decision/rulings. The most important paragraphs are copied below, FYI. He decided Kalifornia has effectively banned suction dredging, not just "regulating" it, by requiring permits and then making it impossible to issue permits.
The New 49ers e-mail from Dave McCracken is copied below too, with the links, if you want to go see the documents for yourself.
WAY TO GO EVERYONE THAT HELPED WITH DONATIONS TO THEIR LEGAL FUNDS, WROTE LETTERS TO THE COURTS!!!!
Randy Witham "C-17A"
www.goldadventures.biz----------------
Kimble MSA on it s 1St COA and PLP MSA on it s 4th COA
Kimble argues that most suction dredge mining in California occurs on Federal lands
where a miner has validly located and filed a Federal mining claim pursuant to Federal
mining law. This creates for the miner an enforceable property right under Federal law
to extract all minerals from his mining claim. Suction dredge mining is the only
economical and environmentally sound method for extracting minerals from California s
rivers and streams But F G Code 5653 1 since 2009 along with the CDFW new
regulations in 2012 prohibits Federal prospectors and miners who hold Federal
mining claims and mineral estates from engaging in suction dredge mining on Federal
lands. Accordingly, Kimble contends they are entitled to summary adjudication of the
federal preemption cause of action as a matter of law since the California statute and
regulations impermissibly conflict with the 1872 General Mining Law as amended 30
U S C 22 54 and the 1976 Federal Land Policy Management Act 43 U S C
1701 et seq which provide that all valuable mineral deposits in lands belonging to the
United States shall be free and open to mineral development.
Kimble argues that CDFW has admitted that its 5653 1 constitutes a complete
prohibition on suction dredge mining because the mandated new regulations have not
and cannot fully mitigate all identified significant environmental impacts pursuant to F
G Code 5653 1 b 4 and therefore constitutes a physical impossibility to comply
with both State and Federal law citing among other cases California Coastal
Commission v Granite Rock Co 1987 480 U S 572 581 Granite Rock. Kimble
argues the general rule is that where the state law stands as obstacle to the
accomplishment the full purposes and objectives of Congress it is preempted, Granite
Rock supra 480 U S 575 592 see also Perez v Campbell 402 U S 637 1971
Any state legislation which frustrates the full effectiveness of Federal law is rendered
invalid by the Supremacy Clause regardless of the underlying purpose of its enactors.
The all pervading purpose of the mining laws is to further the speedy and orderly
development of the mineral resources of our country United States v Nogueira 403
F 2d 816 823 9th Cir 1968 see also 30 U S C 21a 1 The continuing policy of the
Federal Government in the national interest to foster and encourage private enterprise
in the development of the economically sound and stable domestic mining minerals
metal and mineral reclamation industries.
To further these vital public policies the 1872 Mining Act declares
all valuable mineral deposits in lands belonging to the United States
both surveyed and un-surveyed shall be free and open to exploration and
purchase and the lands in which they are found to occupation and
purchase by citizens of the United States 30 U S C 22.
PLP makes essentially the same arguments.
Ruling:
On their motions for summary adjudication 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 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.
--------------
New 49ers MSA on it s 2nd COA
In the second causes of action of the New 49ers FAC Plaintiffs allege that through the
1872 Mining Law as amended and related statutes Congress created federal property
rights in mining claims in furtherance of general federal policy to foster mineral
development on federal lands. Also, Congress possesses plenary power over federal
property under the Property Clause U S Const Art IV 3 FAC 62 The New
49ers allege that the CDFW Actions F G Code 5653 1 and regulations thereunder
individually and or in any combination thereof are void as against the U S Constitution
on the ground of the Supremacy Clause U S Constitution Article VI Clause 2 insofar
as they interfere with the federal purpose of fostering mineral development on federal
property and stand as an obstacle to the accomplishment and execution of the
purposes and objectives of Congress. FAC 63
The New 49ers argue they are entitled to summary adjudication of their
second cause of action for federal preemption of F G Code 5653 1 and portions of
the regulations set forth at 14 Cal Code of Regs 228 et seq, which operate to forbid
Plaintiffs from mining their claims. The New 49ers acknowledge that the State of
California has lawful power to enact reasonable environmental regulations that do not
materially interfere with mining operations. In 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.
Specifically, the New 49ers contend the challenged statutory and regulatory
restrictions on suction dredge mining are preempted by federal law based on its
arguments regarding the nature of rights in mining claims under Federal law and
regulations and the doctrine of federal preemption generally and in the mining context.
The arguments of the New 49ers are similar to those of PLP and Kimble.
Ruling:
On its motions for summary adjudication 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 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.
----------------
From: Dave McCracken
Sent: 1/13/2015 6:15 PM
To:
Subject: Another HUGE win for our side!
San Bernardino Superior Court Judge Ochoa awarded California
suction dredgers a huge win today by declaring California's
"scheme" of first passing a law that requires us to obtain a
permit, and then passing another law making permits unavailable,
as an unlawful interference with the intention of congress.
Since we have invested so much for such a long time to get here,
I strongly encourage you to read the decision just below:
http://www.goldgold.com/wp-content/uplo ... Ruling.pdf
Here is a shorter summary by our attorney:
http://www.goldgold.com/wp-content/uplo ... -13-15.pdf
I will follow soon in our January newsletter with some perspective
on how this will affect the 2015 season. In the meantime, I will voice
my own opinion that at least until the California Supreme Court weighs
in (or chooses not to) on the recent Rinehart Decision (we will know
within a few weeks), I do not believe there is any chance the State of
California could successfully prosecute any person for operating a
suction dredge without a permit.
Once again, I want to thank all of you who have supported this effort.
It just goes to show that sometimes the good guys actually do win!
Happy New Year to everyone!
Dave McCracken
The New 49'ers Legal Fund
The New 49er's, 27 Davis Road, Happy Camp, California 96039, USA
To unsubscribe or change subscriber options visit:
http://www.aweber.com/z/r/?TOyMrBzstCwc ... xMbBwMLJw=
23rd is D Day as CDFG digs in it's heels as a rogue agency out of control...John