Premption Argument Shot Down in Oregon

[Hoser John]

Just in from Eric at WMA---
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The preemption defense just got smoked in Oregon






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emaksymyk <emaksymyk@theminingalliance.com>




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Today at 6:08 AM


Attached is the federal court decision in the Oregon case Bohmker v.
Oregon (25 Mar 2016) in which the miners argued the suction dredging ban
was preempted.

Every argument we've made in the Rinehart case was just burned to the
ground.

Given this decision the future of the Rinehart case becomes clearer.

The CEQA case is now our last defense and its time we took a sober look
at how we structure our defense of small scale mining.

If you read this decision you'll see the court reviewed the Rinehart
decision and found the expense of complying with regulations has no
impact on whether an environmental regulation is preempted. It further
found the dredging ban does not prohibit the use of all mining equipment
and bought into the State's argument the use of shovels and pans is
still mining.

Although we may not like this decision, and will feel inclined to yet
again argue we got a bad judge, the reality is the preemption defense
was just destroyed by a federal court in regards to dredging. The
court's argument is logical and other courts will follow this argument.

I imagine with this ruling the CA Supreme Court will issue their ruling
very soon, but you can bet the environmentalists have already faxed this
decision to the court and they are just giddy today.

Our future now depends on arguing the environmental review process was
flawed and the regulations aren't reasonable. It's clear no court is
going to support an approach which says we won't be regulated, and we're
not subject to environmental review.

If there is one saving grace in Ochoa's preemption ruling it is he based
his decision on the State requiring permits, but having no process to
issue those permits. The federal court didn't review this aspect, so the
Ochoa decision may still stand as it reviewed a different aspect of the
preemption.

One final observation - the decision starts off with explaining summary
judgment. It would appear in complex cases where facts need to be argued
over you really don't want summary judgment and the judge seems to
allude to this.

Eric

[Jim_Alaska]

The fat lady has not sung yet. This is what appeals are all about.

[Ornery Cuss]

Just more stinking time and of course $$$$


OC

[Jim_Alaska]

I agree OC, but the alternative is unthinkable....sit on our butts and do nothing and never be able to dredge for sure.

[russau]

Jim its already unthinkable what these wacoenviromentalists have done to our Country and the laws! WE need to get to their pocket book and hurt them to end this CRAZY cycle! BUT your right ,sitting here and NOT doing anything is the worst we could do!

[Hoser John]

SEASON 9 GOING DOWN AS 1/4TH GONE ALREADY sic sic sic -John