PLP v SB 670 MOTION TO DISMISS REPLY

[old gold miner]

MEMORANDUM IN SUPPORT
I.
INTRODUCTION
Beginning on August 6, 2009, with the enactment by the State of California of SB 670 [California Fish and Game Code §5653.1] there was no longer suction dredge mining in the waters of the State, including on Federal mining claims (A copy of SB 670 [California Fish and Game Code §5653.1] is attached hereto as Exhibit “A”). The history of SB 670, the related litigation, and the history of this action is given in detail in Plaintiffs’ Complaint and Plaintiffs’ Motion for Preliminary Injunction.

On July 10, 2009, the Honorable Frank Roesch, Judge of the Superior Court, Alameda County, issued a preliminary injunction in Hillman et al. v. California Department of Fish and Game. Case no. RG009434444 (“Karuk II”) which stated that: “the California Department of Fish and Game and its Director, Donald Koch, immediately cease and desist from spending any funds obtained by them from the State of California General fund to issue suction dredge permits pursuant to Fish and Game Code § 5653 and 14 CCR §228 and §228.5.” Karuk II, (Order for Preliminary Injunction). Plaintiffs Gerald Hobbs and PLP have appealed the issuance of a preliminary injunction, although briefs have yet to be filed.
On October 1, 2009, in “Karuk II” Judge Roesch issued an order continuing a Case Management Conference until April 5, 2010 and further ordering:

“Pending the continued CMC or further Order of the Court, proceedings herein shall be stayed in light of the passage of AB [Sic] 670 and the challenge to it in the Federal Court. The appeal of the Order Granting Preliminary Injunction is not stayed or affected in any way by this Order. Nor is any party stayed from entering into any Stipulation settling this matter or from making a motion for dismissal.” [Exhibit “B”]

On January 8, 2010, in Karuk Tribe of California; and Leaf Hillman, Plaintiffs, v. California Department of Fish and Game, Defendants, Case No. RG 05211597 (“Karuk I”), Judge Roesch, in light of the stay in “Karuk II”, continued the Case Management Conference of January 12, 2010 until February 14, 2011 [Exhibit “C”].

II.
ARGUMENT
A. PLAINTIFFS CLAIMS ARE PROPERLY BEFORE THIS COURT AND READY FOR ADJUDICATION
1. UPON ADMISSION TO THE UNION CALIFORNIA WAIVED AND CONGRESS ABROGATED ITS IMMUNITY TO SUIT IN FEDERAL COURT

On September 9, 1850, Congress passed an Act for the Admission of California into the Union. 31 Cong. Ch. 50, September 9, 1850, 9 Stat. 452. In critical part, that Act states as follows:

“Sec. 3. And be it further enacted, That the said State of California is admitted into the Union upon the express condition that the people of said State, through their legislature or otherwise, shall never interfere with the primary disposal of the public lands within its limits, and shall pass no law and do no act whereby the title of the United States to, and right to dispose of, the same shall be impaired or questioned. . .” [Exhibit “D”].

1849 saw a flood of people enter the then Federal Territory of California, searching primarily for gold. These “49ers” gave California the population base needed for statehood. The public lands, and the gold it contained, gave the then unorganized Territory of California, the political clout needed for statehood [See H.W. Brands, The Age of Gold; The California Gold Rush and The New American Dream (2002)].

Section 3 of the Statehood Act manifests Congresses’ concern that it, and not the incipient State of California, control and have the primary benefit from the gold on the public lands of California. 31 Cong. Ch. 50, September 9, 1850, 9 Stat. 452. The Treasury Department, from the earliest days, kept an eagle eye on gold production in California. [Brands, supra, at pp.231-232]. This was not an unrealistic concern, considering that at the time of California’s admission to the Union the issue of slavery was beginning to tear the United States apart, and so much of the impending civil war was financed by the United States with California gold. [Brands, supra, at pp.361-362]. The last thing Congress intended was that disputes relating to gold and the public lands generated by any acts by the newly created and cash starved State of California would be immune from the jurisdictions of the Federal Courts. This is especially so, as, when the California Statehood Act was passed, California was still a Federal territory, and there were no State institutions of any kind to consider.

SB 670 directly interferes with and impairs the disposal of Federal property, i.e. Federal mining claims. It questions the Unites States’ right to dispose of such claims, because it brings into issue who has the final authority over the right to mine on the claims, The United States or California. SB 670 has that same volatile mix of the public lands and gold that concerned the Congress in 1850. SB 670 directly violates Section 3 of the California Statehood Act, by prohibiting suction dredge mining on Federal public lands. This makes such mining claims worthless. [See Declarations of Steve Tyler, Robert Haiduck, Gerald Hobbs, Delores Stapp, Pat Keene, Jim Aubert, Richard Geirak, Mike Holt, Daniel Lewis, Todd Smith, Roberta Collum, Robe Goreham, Shannon Poe, Gilbert Blevins, Myrna Karns, Charles Lassiter, and Todd Bracken filed in connection with plaintiffs Motion for Preliminary Injunction to be heard March 25, 2010. All further cited Declarations refer to Declarations on file with the Court regarding Plaintiffs’ Motion for Preliminary Injunction].

In Hubbs v. Department of Human Resources 273 F3d 844 (9th Cir. 2001), the Family and Medical Leave Act (“FMLA”) did not specifically give an individual a right to sue a State in Federal Court. The Ninth Circuit, never the less, stated that waiver could be ascertained “‘by such overwhelming implications by the text as will leave no room for any other reasonable construction’ quoting Edelman v. Jordan, 415 U.S. 184, 84 S.Ct. 1347, 39 L.ED.2d 662 (1974)” [273 F.3d at 851], and that even without specifically saying so, the FMLA “clearly expresses congressional intent to abrogate state sovereign immunity from suits by individuals” . [273 F.3d at 851.]

Section 3 of the California Statehood Act expresses Congressional intent to allow the State of California to be sued in Federal Court for its violation, especially when the public lands and gold are at issue. No other reasonable construction is possible. California entered the Union accepting the terms of Section 3. By such acceptance, it waived its right to assert sovereign immunity in Federal Court, and accepted Congress’ abrogation of that right, for violations of Section 3 of the Statehood Act.

2. PLAINTIFFS’ CLAIMS ARE REDRESSABLE IN THIS COURT
Defendants allege that Plaintiffs lack standing to bring their action, because a favorable ruling in the Court will not redress Plaintiffs’ injury. They rely on the pending litigation before Judge Roesch in the Alameda County Superior Court, which has been referred to above as Karuk I and Karuk II. There is a difference between the litigation before this Court, and Karuk I and Karuk II. SB 670 bans suction dredge mining, i.e., the actual implements used to engage in suction dredge mining. Judge Roesch’s injunction is based entirely on State law not before this Court. Judge Roesch’s Order issuing his injunction never discusses any Federal laws or issues. [Exhibit “E”].

As has been shown above, Judge Roesch has stayed all proceedings before him in Karuk I and Karuk II, because of the passage of SB 670, and the litigation challenging its validity filed in this Court. [Exhibits “B and “C”] It is quite obvious that Judge Roesch is seeking guidance from this Court. Any favorable action regarding Plaintiffs in this Court will go a long way in Plaintiffs obtaining favorable action before Judge Roesch. In Utah v. Evans, 536 U.S. 452, 464, 122 S.Ct. 2191 (2002), the Supreme Court held, regarding a third party not before the Court, that standing and redressability are satisfied when:

“. . . the Courts would have ordered a change in a legal status (that of the “report”), and the practical consequence of that change would amount to a significant increase in the likelihood that the Plaintiff would obtain relief that directly redresses the injury suffered.”

Accord Klamath Water Users Association v. Federal Energy Regulatory Commission, 534 F.3d 735, 739 (D.C.C.A. 2007); National Parks Conservation Association v. Manson, 414 F.3d 1, 7 (D.C.C.A. 2005). There is a very strong likelihood that a ruling by this Court favoring Plaintiffs regarding SB 670 would redress the injury suffered by Hobbs and PLP before Judge Roesch in Karuk II when he issued his injunction.

3. THE YOUNGER DOCTRINE DOES NOT REQUIRE THIS COURT TO ABSTAIN FROM DECIDING THE ISSUES BEFORE IT
Abstention, although discretionary, is a very narrow doctrine. In New Orleans Pub. Serv., Inc. v. Council of City of New Orleans, 491 U.S. 350, 359, 109 S.Ct. 2506, 2513 (1989) the Supreme Court stated:

“We have carefully defined, however, the areas in which such ‘abstention’ is permissible, and it remains ‘the exception, not the rule.’ [Citations omitted] As recently as last Term we described the Federal Courts’ obligation to adjudicate claims within their jurisdiction as ‘virtually unflagging.’”In accord Quackenbush v. Allstate Ins. Co., 517 U.S. 706, 728, 116 S.Ct. 1712, 1727 (1996).

As stated above, Judge Roesch’s injunction deals only with prohibiting DF&G from issuing permits for suction dredging. [Exhibit “D”] SB 670 prohibits the very act of suction dredging. The primary emphasis of SB 670 is different from that of Judge Roesch’s Order. Judge Roesch’s Order was issued before SB 670 was passed. Consequently, Judge Roesch never even discussed SB 670, nor was SB 670 ever raised by any of the parties before Judge Roesch. Judge Roesch’s Order is based entirely on State law, primarily the California Environmental Quality Act (CEQA), the California Fish & Game Code, and the regulations issued there under, as well as the propriety of granting a preliminary injunction in a taxpayer action. Abstention is improper where the issues are not identical. Colorado River Water Conservation Dist. V. United States, 424 U.S. 800, 815, 96 S.Ct. 1236, 1245 (1976).

Judge Roesch has stayed all proceedings in Karuk II in anticipation of this Court’s decision on SB 670. “. . . proceedings herein shall be stayed in light of the passage of AB[Sic] 670 and the challenge to it in Federal Court.” (emphasis added) Judge Roesch looks to this Court for guidance not abstention. In Walnut Properties, Inc. v. City of Whittier, 861 F.2d 1102, 1106-7 (9th Cir. 1988):

[c]oncerns [of abstention] are not present where a state court has stayed its own proceedings pending resolution of the case in a federal forum. In such an instance, federal proceedings do not “‘unduly interfere with the legitimate activities of the States.’”... If the state court voluntarily chooses to have the case decided by a federal court, “principles of comity do not demand that the federal court force the case back into the state’s own system.”

4. PLAINTIFFS’ COMPLAINT PROPERLY STATES CLAIMS UPON WHICH RELIEF CAN BE GRANTED
Plaintiff’s Complaint sets forth a specific, detailed, and definite basis for the assertion of their claims, and Defendant’s Motion for More Definite Statement should be accordingly denied. Under Federal Rule of Civil Procedure 8(a), a complaint must contain only "a short and plain statement of the claim showing that the pleader is entitled to relief." F.R.C.P. § 8(a)(2). A Complaint must simply give the defendant “fair notice of what the . . . claim is and the grounds upon which it rests.” Bell Atlantic Corp. v. Twombly, 550 U.S. 544 (2007). Plaintiffs must show a claim has “facial plausibility”. This standard requires only that “the plaintiff plead factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged.” Ashcroft v. Iqbal, 129 S.Ct. 1937, 1949 (2009).

With respect to Federal Rule of Civil Procedure 12(e), a Motion for More Definite Statement must be denied where the complaint is specific enough to apprise Defendants of the substance of the claim being asserted. Hubbs v. County of San Bernardino, CA, 538 F.Supp.2d 1254, 1262 (C.D.Cal. 2008). If the Defendant can respond, even with a simple denial, in good faith or without prejudice to itself, the Motion will be denied. Cellars v. Pacific Coast Packaging, Inc., 189 F.R.D. 575, 579 (N.D. Cal. 1999). In addition, Rule 12(e) motions are often used for dilatory purposes, and are improperly used as a substitute for what is available through discovery. See, M. J. Brock & Sons, Inc. v. City of Davis, 401 F.Supp. 354, 361 (D.C.Cal. 1975) (“Motions under Rule 12(e) can have a dilatory effect.”); Beery v. Hitachi Home Electronics (America), Inc., 157 F.R.D. 477, 480 (C.D.Cal. 1993) (“Where the information sought is available through the discovery process, a Rule 12(e) motion should be denied.”)

Plaintiffs’ Complaint sets forth in detail facts justifying the claims stated, the history of this litigation, the Plaintiffs’ background, how plaintiffs are affected by the passage of SB 670, as well as the statutory basis for assertion of Plaintiffs’ claims. Each count in Plaintiffs’ Complaint sets forth the elements of the claim, the injury Plaintiffs have suffered, and are grounded in familiar law Counts that more then apprise Defendants of the nature of the claim. Accordingly, Plaintiff has more then fulfilled its obligation to “give the defendant fair notice of what the . . . claim is and the grounds upon which it rests.” Twombly, 550 U.S. at 554-55.

Much of what Defendants quibble about of in the individual Counts appears to be a deliberately obtuse reading of the Complaint. For instance, with respect to Count I and Federal pre-emption, Defendants spend multiple pages attacking an attached list of statutes and regulations as creating “no enforceable [individual] rights at all.” Motion to Dismiss, page 15. But this is, as the title alone states, a Federal pre-emption claim. Demonstrating pre-emption requires Plaintiff to demonstrate a comprehensive scheme of Federal regulation sufficient to make reasonable the inference that Congress ‘left no room’ for supplementary regulation, or that state law stands as an obstacle to the accomplishment and execution of the full purposes and objectives of Congress. Ting v. AT&T, 319 F.3d 1126, 1135 (9th Cir. 2003).

Accordingly, in line with its pleading burden, Plaintiff has apprised Defendant of a pervasive scheme of mining law, Federal mining property rights, and supplementary environmental and labor regulations with which SB 670 interferes. As the Complaint plainly states, “the absolute prohibition of SB 670 of vacuum or suction dredge mining . . . for Federal mining claims within Federal lands.... directly conflicts with those Federal mining laws, and violates the Supremacy Clause and Article IV, § 3 of United States Constitution”, Complaint, ¶ 90. The Plaintiffs have set forth a specific, definite, and detailed basis for the assertion of their claims, and strained, close-minded readings do not change this fact.

B. PLAINTIFFS SUBSTANTIVE CLAIMS ARE WELL PLED AND STATE CLAIMS UPON WHICH RELIEF CAN BE GRANTED
5. SB 670 IS PREEMPTED BY FEDERAL MINING LAWS AND OTHER FEDERAL STATUTES AND REGULATIONS (COUNT I)
It is the policy of the Federal government to foster and encourage mining on Federal lands. United States v. Weiss, 642 F.2d 296, 299 (9th Cir. 1981); see also United States v. Goldfield Deep Mines Co., 644 F.2d 1307, 1309 (9th Cir. 1981), cert. denied, 455 U.S. 907, 102 S.Ct. 1252, 71 L.Ed 445 (1982). It is the policy and effect of SB 670 to prohibit mining on Federal lands. Unpatented mining claims are “property” in the highest sense of such term. (30 U.S.C. §§ 22 and 26). Wilber v. U.S. ex rel. Krushnic, 280 U.S. 306 (1930); U.S. v. Etcheverry, 20 F.2d, 193 (CA 10th 1956).

State permit laws cannot invalidate Federal mining rights granted pursuant to Federal law. In the land use context, courts have long invalidated State permit regimes that purport to assume control over Federal land because such laws invariably frustrate Federal law. See, First Iowa Hydro-Electric Cooperative v. Federal Power Comm’n, 328 U.S. 152, 166-67 (1946). In the land use context, Federal law preempts any State law (or permit regime) that usurps ultimate decision-making authority over Federal land involving mining rights, or that effectively grants the State veto power over how the land involving mining rights may be used. See Butte County Water Co. v. Baker, 196 U.S. 119, 49 L.Ed. 409, 25 S.Ct. 211 (1905); State ex rel. Andrus v. Dick, 554 P.2d 969 (Idaho 1976); California Coastal Commission v. Granite Rock Co., 480 U.S. 572, 107 S.Ct. 1419 (1987). Whatever right a State may have to regulate activities, environmental or otherwise, it cannot prohibit on Federal land those activities specifically permitted by the United States, Brubaker v. El Paso County 652 P.2d 1050 (Colo. 1982). No State can prohibit even temporarily on Federal lands, an activity which Congress specifically permits.

In Ventura County v. Gulf Oil Corp., 601 F.2d 1080 (9th Cir.1979), the Court stated:
“Despite this extensive Federal scheme reflecting concern for the local environment as well as development of the nation’s resources, (Ventura County) demands a right of final approval . . . The Federal Government has authorized a specific use of Federal lands, and Ventura cannot prohibit that use, either temporarily or permanently, in an attempt to substitute its judgment for that of Congress.” Id. at 1084. (Emphasis added).

SB 670 impermissibly conflicts with the 1872 General Mining Law (“GML”), as amended, 30 U.S.C. §§ 22-54.; the Stock Raising Homestead Act of 1916, 43 U.S.C. § 291 (1976); and the 1976 Federal Land Policy and Management Act, 43 U.S.C. §§ 1701 et seq. (1976) which provide that all valuable mineral deposits in lands belonging to the United States shall be “free and open” to mineral development. These Federal laws cannot be reconciled with SB 670, which completely closes Federal lands in California to suction dredge mining. Compliance with both Federal mining laws and SB 670 is impossible. Gade v. National Solid Wastes Mgt. Ass’n., 505 U.S. 88, 112 S.Ct. 2374, 2383 (1992). The 1872 General Mining Law recognizes only those local laws that are “not inconsistent” or “not in conflict” with the laws of the United States (30 U.S.C. § 22 and 26 respectively).

State and local laws which prohibit the mining of Federal lands, rather than reasonably regulate them as is authorized by California Coastal Commission, 480 U.S. at 589, thus directly prohibiting an act which Federal law authorizes, are void. See Elliott v. Oregon International Mining Co., 654 P.2d 663 (Ore. 1982). In California Coastal Commission v. Granite Rock, supra, 480 U.S. at 586-587 the United States Supreme Court stated:

“In the present case, the Coastal Commission has consistently maintained that it does not seek to prohibit mining of the unpatented claim on national forest land. See 768 F.2d, at 1080 (“The Coastal Commission also argues that the Mining Act does not preempt state environmental regulation of federal land unless the regulation prohibits mining altogether…”) (emphasis supplied); 590 F.Supp., at 1373 (“The [Coastal Commission] seeks not to prohibit or ‘veto,’ but to regulate [Granite Rock’s] mining activity in accordance with the detailed requirements of the CCA…. There is no reason to find that the [Coastal Commission] will apply the CCA’s regulations so as to deprive [Granite Rock] of its rights under the Mining Act”); . . . . [T]he question presented is merely whether the state can regulate uses rather than prohibit them.” [Emphasis in Original]

In South Dakota Mining Association v. Lawrence County, 155 F.3d 1005 (8th Cir.1998), the United States Court of Appeals for the Eighth Circuit held that a County ordinance outlawing “surface metal mining” on Federal public lands was preempted by Federal law. See, Id. at 1011. The Eighth Circuit emphasized the fact that “surface metal mining (was) the only practical way (anybody could) . . . actually mine the valuable mineral deposits located on Federal land in the area . . . .” Id. Suction dredge mining is the only environmentally sound method and “practical way” of mining the streams and rivers of California. [Declarations of Gerald Hobbs and Patrick Keene] The Eighth Circuit stated that the County ordinance had the same effect as a “de facto ban on mining in the area.” Id.

The County argued that the ordinance was not preempted because “the ordinance is a reasonable environmental regulation of mining on Federal lands”, Id. at 1009. The Court stated that the General Mining Law, “provides for the free and open exploration of (Federal) lands for valuable mineral deposits.” Id. at 1010. The Court further stated that “the Congressional intent underlying (the GML) is to reward and encourage the discovery of economically valuable minerals located on (Federal) public lands.” Id. (citing, United States v. Coleman, 390 U.S. 599 602 (1968)). The Court concluded that the purposes and objectives of Congress in enacting the General Mining Law:

“(i)nclude the encouragement of exploration for the mining of valuable minerals located on Federal lands, providing Federal regulations of mining to protect the physical environment while allowing the efficient and economical extraction and use of minerals, and allowing State and local regulation of mining so long as such regulations are consistent with Federal mining law.” Id.

The County ordinance prohibited the issuance of any new permits. Id. at 1011. The Eighth Circuit went on to describe the Lawrence County ordinance as “a per se ban on all new or amended permits for surface metal mining within the area.” Id. Crucially, the Court stressed the fact that “surface metal mining is the only practical way any of the Plaintiffs can actually mine the valuable mineral deposits located on Federal land in the area.” Id. This commercial necessity prohibits “a state environmental regulation that is so severe that a particular land use would become commercially impracticable.” Granite Rock, 480 U.S. at 587.

The Court stated that Lawrence County’s ordinance’s prohibiting the issuance of any new or amended permits is “a clear obstacle to the accomplishment of the Congressional purposes and objectives embodied in the (GML).” Lawrence County, 155 F.3d at 1011. The Court characterized Lawrence County’s ordinance as “prohibitory, not regulatory, in its fundamental character,” Id., and pointed out that the ordinance “completely frustrates . . . federally encouraged activities.” Id. The Eighth Circuit stated that to allow a local government to prohibit a lawful use of Federal land that the Federal Government itself permits and encourages, would “offend both the Property Clause and the Supremacy Clause of the Federal Constitution.” Id.

The Defendants are not really arguing that Plaintiffs have not stated a valid claim for preemption, or, at the very least, the Governor and the Director of DF&G are subject to an injunction prohibiting the enforcement of SB 670. Defendants’ Memorandum pages 3 and 4. As Plaintiffs have stated previously, and as a fair reading of Count I will show, it is clear, direct, and informative, and meets all requirements necessary to state a valid, plausible claim for preemption and supremacy for Federal mining law, including the United States Constitution, over SB 670.

6. SUBSTANTIVE AND PROCEDURAL DUE PROCESS CLAIMS ARE PROPERLY STATED ( COUNT II )
Plaintiffs have properly asserted a claim for violations of their rights to procedural and substantive due process following the summary and irrational taking of their constitutionally protected property rights. A right to a hearing and notice arises with respect to a state action where a relatively small number of people are exceptionally affected by a legislative action. Harris v. County of Riverside, 904 F.2d 497, 501 (9th Cir. 1990). On average, DF&G has issued approximately 3,200 suction dredge mining permits to California residents every year for the last fifteen (15) years. [Publication, 8-12-09, DF&G, Suction Dredge Permitting Program Subsequent Environmental Impact Report (SEIR)].

Special and irrational legislation aimed at 3,200 suction dredge miners, out of a population of 37,000,000 Californians, are entitled to procedural due process. Procedural due process is particularly vital with respect to total and complete deprivation of constitutionally protected property rights. See, Weinberg v. Whatcom County, 241 F.3d 746, 754 (9th Cir. 2001) (requiring notice and a hearing where “the County effectively deprived [plaintiff] of the economic value of his property and rendered nugatory his prior efforts and expenses incurred to develop it.”); Washington ex rel. Seattle Title Trust Co. v. Roberge, 278 U.S. 116, 121 (1928) (“The right of [an owner] to devote [his] land to any legitimate use is properly within the protection of the Constitution.”).

Similarly, the arbitrary and unreasonable treatment Plaintiffs have received violates their constitutional right to substantive due process. Euclid v. Ambler Realty Co., 272 U.S. 365, 395, (1926) (actions violate substantive due process where “clearly arbitrary and unreasonable, having no substantial relation to the public health, safety, morals, or general welfare.”). The State violates substantive due process where the governmental action is not rationally related to a State interest. Mikeska v. City of Galveston, 451 F.3d, 376, 380 (5th Cir. 2006); Restigouche, Inc. v. Town of Jupiter, 59 F.3d 1208, 1212-1213 (11th Cir. 1995). Plaintiff has adequately alleged that SB 670 is an irrational act, not related to a legitimate state purpose, and is directed entirely at a relatively small number of suction dredge miners, causing severe loss to them, their families, and their livelihood. (Complaint, pp.34-35, ¶99). This violates the substantive due process protections of the Constitution.

Defendants are not really arguing that Plaintiffs have not adequately pled a valid substantive due process claim.
Their argument is that Plaintiffs will not be able to prove their claim.
That is a matter for another day.

7. PLAINTIFFS HAVE STATED A VALID EQUAL PROTECTION CLAIM (COUNT III)
An equal protection claim is sufficient even to a class of one where the plaintiff can show that (1) the plaintiff was intentionally treated differently from other similarly situated persons, and (2) there was no rational basis for the difference in treatment. See, Village of Willowbrook v. Olech, 528 U.S. 562, 564 (2000) (allegations of intentional and irrational discrimination sufficient to pass a motion to dismiss for failure to state a claim for equal protection). Here, Plaintiffs’ Complaint properly alleges with respect to (1) that they alone, as suction dredge miners and holders of Federal mining claims, were intentionally prohibited from using their property. This is clear on the face of SB 670, and painfully clear from the Declarations filed in support of Plaintiffs’ Motion For Preliminary Injunction. With respect to (2), Plaintiffs’ Complaint alleges that Defendants ordered a complete halt to all suction dredge mining in the State of California despite not completing an environmental review, without any information respecting environmental impact, allowing other suction dredge users [§ 5653.1(c)], and without any other rational relationship to a legitimate State purpose.

Defendants’ interpretation of the equal protection clause would have every equal protection claim tossed out without any factual development at all. However, as the Supreme Court recognized in Olech, “the purpose of the equal protection clause of the Fourteenth Amendment is to secure every person within the State's jurisdiction against intentional and arbitrary discrimination, whether occasioned by express terms of a statute or by its improper execution through duly constituted agents.” Olech, 528 U.S. at 565. At least at the pleading stage, it is insufficient to speak the word “environmental” and immediately dismiss an injured plaintiff’s constitutional rights where, as here, Plaintiffs allege particular facts showing that they were intentionally and arbitrarily injured without a legitimate purpose. Defendants are really arguing that Plaintiffs will not be able to prove their allegations regarding equal protection, not that they have failed to plead a plausible valid claim.

8. PLP’S TAKINGS CLAIM IS RIPE FOR DECISION (COUNT IV)
Defendants argue that Plaintiffs’ takings claim is “unripe” because “if a State provides an adequate procedure for seeking just compensation, the property owner cannot claim a violation of the Just Compensation Clause until it has used the procedure and been denied just compensation.” Williamson County Regional Planning Com’n v. Hamilton Bank of Johnson City, 473 U.S. 172, 195 (1985). However, even under Williamson, the claimant has no obligation to first seek state action where “such procedures are shown to be ‘unavailable or inadequate.’” Equity Lifestyle Properties, Inc. v. County of San Luis Obispo, 548 F.3d 1184, 1190 (9th Cir. 2008); Yamagiwa v. City of Half Moon Bay, 523 F.Supp.2d 1036, 1103 (N.D.Cal. 2007) (“[I]t is well established that a plaintiff need not exhaust administrative remedies if the effort to do so would be futile.”) Here, the state action against SB 670 has been indefinitely stayed pending resolution of this Federal action and the constitutional issues therein. An end run around Judge Roesch’s stay Order, awaiting the rulings of this Court on the constitutional issues involved, is improper. As the Complaint notes, SB 670 contains no procedures for compensating Plaintiffs. Complaint, p.36, ¶106.

In addition, Williamson “does not exclude from federal court a claim for declaratory and injunctive relief to establish that a state law, on its face, violates the Fifth Amendment.” Washington Legal Foundation v. Legal Foundation of Washington, 236 F.3d 1097, 1104 (9th Cir. 2001). As the Ninth Circuit noted in Washington, “most of what is at issue . . . is declaratory and injunctive relief, not the takings claim . . .” Id. As in Washington, this is a suit seeking injunctive relief against the operation of SB 670 based on an unlawful deprivation of property. Plaintiffs in this litigation are making a facial challenge as to the constitutionality of SB 670. Plaintiffs claim that SB 670 is irrational, and does not advance a legitimate State interest. Complaint, p.19, ¶¶55-56. Exhaustion is not required to state a ripe takings claim that the ordinance is arbitrary and irrational, and does not substantially advance a legitimate State interest. Ventura Mobilehome Communities Owners Ass’n v. City of San Buenaventura, 371 F.3d 1046, 1050-1054 (9th Cir. 2004). Lingle v. Chevron U.S.A. Inc., 544 U.S. 528, 540-545, 125 S.Ct. 2074, 2082-2085 (2005). A facial challenge to a taking is ripe for decision when the statute is enacted, because denial of just compensation is irrelevant for the ripeness of a facial challenge. Quicken Loans, Inc. v. Wood, 449 F.3d 944, 953-954, (9th Cir. 2006), cert. denied, 127 S.Ct. 834, 166 L.Ed.2d 666 (U.S. 2006). On its face, the language and effect of SB 670 are clear and obvious, and will not be further developed by any State procedure. This issue is ready for adjudication by this Court.

9. SB 670 VIOLATES PLAINTIFFS CIVIL RIGHTS (COUNT V)
As set forth in Plaintiffs’ Complaint, SB 670 has such a perverse history, was enacted for such an improper purpose, has such devastating consequences upon Plaintiffs and other suction dredge miners in California and their families, that it gives rise to a violation of 42 U.S.C. § 1983. Violation of Civil Rights . Section 1983 prohibits “under color of any statute, ordinance regulation”, the “deprivation of any rights, privileges, immunities, secured by the Constitution and laws.” Defendants have clear appreciation of what is at issue in this claim.

10. PLAINTIFF HAVE STATED VALID CLAIMS UNDER THE MINING LAWS (COUNTS VI , VII and VIII)
Count VI: Violation of the Mining and Minerals Policy Act of 1970, 30 U.S.C. § 21a and Count VII: Violation of 30 U.S.C. §§ 21-54 (Mining Act) sets forth two Federal statutes that directly benefit the Plaintiffs in the holding and development of their mining claims, and with which SB 670 totally interferes by prohibiting mining on their Federal claims. Defendants are playing cute with the Court with a cascade of quibbling that shows they only too well understand Plaintiffs’ Complaint, the nature of the claims asserted, the facts and law alleged, and the consequences that this has for SB 670. Count VIII: Violation of Plaintiffs’ Implied Rights to Use Public Lands sets forth the common law of mining pursuant to the historical custom and usage of miners. The Federal granting of a mining claim pursuant to the general mining laws implies the right of access to the claim and to developing the minerals on the claim. This is well-recognized by the Courts and the Department of the Interior. U.S. v. 9,947.71 Acres of Land, 220 F.Supp. 328 (D. Nev. 1963); U.S. v. Curtis – Nevada Mines Inc., 611 F.2d 1277 (9th Cir. 1980); Mepelt v. Almasy Mining Co., 99 IBLA 25, 27 (1987); Herbert I. Stewart, 82 IBLA 329 (1984); Alfred E. Koenig, 78 I.D. 305 (1971); 30 U.S.C. § 22; 30 U.S.C. § 612(b). The absolute prohibition of SB 670 of mining on a Federally granted mining claim, clearly interferes with Plaintiffs’ historical implied rights. Defendants understand this all too well.

Counts VI and VII of the Complaint state that the State of California and SB 670 violated Plaintiffs' property rights, as conferred by federal mining law, and codified in 30 U.S.C. 21 et. seq. 30 U.S.C. 21. The property rights conferred by 30 U.S.C. 21 et. seq. are well established and uncontroversial. See Best v. Humboldt Placer Min. Co. 371 U.S. 334, 338, 83 S.Ct. 379, 383 (U.S.Cal. 1963) (recognizing that 30 U.S.C. 21 et. seq. creates property rights enforceable against the federal government); Mineral Policy Center v. Norton, 292 F.Supp.2d 30, 47 (D.D.C.,2003) ("[T]he Mining Law gives citizens three primary rights: (1) the right to explore for valuable mineral deposits, 30 U.S.C. § 22; (2) the right to possess, occupy, and extract minerals from the lands in which valuable mineral deposits are found, 30 U.S.C. § 26; and (3) the right to patent lands in which valuable mineral deposits are found, 30 U.S.C. § 29."); Red Top Mercury Mines, Inc. v. U.S., 887 F.2d 198, 200 (9th Cir. 1989) ("[R]ight of exclusive possession could be retained as long as the claimant maintained the claim under 30 U.S.C. § 28, usually by conducting at least $100 of assessment work annually."). The mining laws reaffirm historical property rights, according to the law and custom of miners, and are not a cascade of newly created civil rights.

11. PLAINTIFFS INTERFERENCE WITH COMMERCE CLAIM IS WELL FOUNDED (COUNT IX)
Absolute prohibitions against the movement of commercial commodities in interstate commerce are disfavored and violate the commerce clause. Santa Cruz Fruit Packing Co. v. N.L.R.B., 202 U.S. 453, 58 S.Ct. 656 (1938). The Commerce Clause prohibits a state or local “statute [that] regulates evenhandedly to effectuate a legitimate local public interest if it imposes a burden on interstate commerce that is ‘clearly excessive in relation to the putative local benefits.’” Pike v. Bruce Church, Inc., 397 U.S. 137, 142, 90 S.Ct. 844, 847 (1970). “The extent of the burden on interstate commerce that will be tolerated will depend on the ‘nature of the local interest involved, and on whether it could be promoted as well with a lesser impact on interstate activities”. Id., 397 U.S. at 142. Even a facially neutral statute may violate the Commerce Clause if the burdens of the statute so outweigh the putative benefits as to make the statute unreasonable or irrational. A statute is unreasonable or irrational when “the asserted benefits of the statute are in fact illusory . . .” UFO Chuting of Hawaii, Inc. v. Smith, 508 F.3d 1189, 1196 (9th Cir. 2007).

As Plaintiffs allege in their Complaint, and despite Defendants allegations and denials, SB 670 is far from facially neutral. It totally prohibits a small class of suction dredge miners from producing precious metals on their federally granted mining claims, while all other miners in competition with them proceed as usual. As Plaintiffs have also alleged and stated above, SB 670 is not merely arbitrary and capricious, it is irrational. Its validity depends upon an Environmental Impact Report yet to be produced that may very well negate the asserted necessity for SB 670. SB 670 is really a shot in the dark. Its purported benefits are illusory, its foundation in fact non-existent.

Also, as the Complaint alleges in detail, SB 670 effectuates no legitimate public interest because it bans outright a source of livelihood without an environmental impact report or other scientific evidence. The Declarations In Support Of Motion For Preliminary Injunction, and the Complaint also show how banning suction dredge mining impacts the earnings of California miners, out of state miners, and the mining equipment industry all of whom are engaged in interstate and foreign commerce. The Defendants attempt to wave the magic wand of “environmental protection” in response to specific factual allegations that SB 670 creates a real burden on interstate and foreign commerce without a legitimate local public interest. Illusory “environmental protection” cannot overrule the Commerce Clause of the Constitution.

Again, Defendants are not really arguing that Plaintiffs have not pled a valid plausible Commerce Clause claim, but question Plaintiffs’ ability to prove that claim.
That also is for another day.

III.
CONCLUSION
For the reasons stated above, Defendants Motions should be denied.
Dated: February 3, 2010 Respectfully submitted,
LAW OFFICES OF DAVID YOUNG
By /s/ David Young
DAVID YOUNG

[CalGoldDredger]

It's All Good!!!!

Thanks for posting it over here OGM.
I had asked if it was open for public participation, answer was yes.
I think the court date was changed to March 25th although, I am trying confirm it with Jerry on another forum.

John

[old gold miner]

Hearing on this motion to dismiss is 25th of Febuary.
Hearing on the motion for Injunction is 25th of March.
Both are in open court, meaning we can go watch.

I would wager, the INJUNCTION will come shortly after the March 25th hearing.
LOL, CA DFG will have to jump quick t6o handle the flood of suction dredge permit applications.

Suggest everyone have an application ready to mail in, the day the injunction is granted.

[El Dorado]

Jim
As usual, thanks. Just for the entertainment of seeing the system in action, I am going watch in person.....

[CalGoldDredger]

Thanks for clearing that up!!!

Confusing, but I get it now.

So it is March 25th that is the one I want, sounds like a winner!!!

I normally try to avoid courts and legal matters like the plaque. I will make an exception.

John

[old gold miner]

Frankly, I assume CA AG motion to dismiss will be DENIED Feb 25th.

Once denied, no real reason for a face off hearing on the injunction.
As if the motion to dismiss is denied, injunction (at least IMHO) will be granted.

For the sake of expediency, since without SB 670, normal dredge season would start April 1.
That the judge grants injunction ASAP, to halt the continuing damage SB 670 is causing.

2nd, CA DFG doesn’t even have the DREDGE PERMIT application on line anymore.
It will take some time for CA DFG to gear up to issue the flood of App’s.
Once injunction is granted they will be hit with 3200 + applications.

It would be WISE for CA DFG to repost the APP now, or in short order.
But, since when has CA DFG acted wisely?

[4theluvofgold]

I hope I do well enough to be present. If I get a decent amount of yellow to sell these trips then I will trade gold for gas to go.

[rivraton]

Frankly, I assume CA AG motion to dismiss will be DENIED Feb 25th.

Once denied, no real reason for a face off hearing on the injunction.
As if the motion to dismiss is denied, injunction (at least IMHO) will be granted.

For the sake of expediency, since without SB 670, normal dredge season would start April 1.
That the judge grants injunction ASAP, to halt the continuing damage SB 670 is causing.

2nd, CA DFG doesn’t even have the DREDGE PERMIT application on line anymore.
It will take some time for CA DFG to gear up to issue the flood of App’s.
Once injunction is granted they will be hit with 3200 + applications.

It would be WISE for CA DFG to repost the APP now, or in short order.
But, since when has CA DFG acted wisely?

Why not request along with the injunction that the permits issued prior to SB 670 be reinstated since they were paid for and their use denied?

[old gold miner]

rivratonWhy not request along with the injunction that the permits issued prior to SB 670 be reinstated since they were paid for and their use denied?

LAST YEARS PERMITS ARE NOW EXPIRED.

It would be a long costly legal hassle / battle to work out how to re-activate them.
It is possible that a pro-rated refund could be in order.


Object now, is get the dredges BACK in the water.
Damages, etc... can be resolved later.

[lc4wd]

wasn't SB 670 passed because the legislature supposedly had evidence to find that the dredging was detrimental?? Where is a copy of the "evidence" they had to back their actions?

thanks