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old gold miner

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  1. That area is good, but covered with unpatented claims, patented claims, pvt property & USFS/BLM withdrawals. So, you have to know whats what, whats open, etc. Otherwise, you can get it hot water.
  2. By no means was I knocking, dinging or throwing stones at agriculture, or farming. They have their battles, but get support from lots of places. There have been FARM AID concerts. Never has there been a concert for mines, or miners. (except around a campfire) Hell, in 95, the US Bureau of Mines was closed. They would play hell trying to close the Dept. of Agriculture. The point being, there has to be a fair trade off. Accept some slight environmental degradation, in return for food, minerals, industry, jobs, etc. The Federal standard is no unnecessary, or undue environmental degradation. NOT “NO” DEGRADATION. Otherwise, there would be no farming, mining or industry at all. California, is just shooting itself in the foot. By passing extreme environmental standards that close farming, mining & related industry. No mining, no farming, no industry = no jobs & no taxes. And, they wonder why California is going broke, and running huge nonstop budget deficits.
  3. Environmentalists have it WRONG about domestic mining. For instance, consider AGRICULTURE for a moment. Reality is, agriculture in America has deforested more land than even the American logging industry. It has destroyed more habitant for animal species than any other industry in the world. Agriculture has caused more species extinction, than any other industry world wide. Agriculture has caused more soil erosion, created more turbidly in America’s waterways, and introduced more degrading, or toxic pollutants of all sorts into the American environment, than any other American industry. Agriculture is the primary cause of more environmental degradation to the surface of whole planet, than any other industry, on the planet. Do you know why major environmental groups do not promote well publicized frontal attacks the agricultural industry in America? Because it provides every citizen in America, with the food they eat, at a competitive price. As such, the people of America, would not knowingly support attacks on the very industry that FEEDS THEM. A dramatic decline in national food production, or a significant increase in food cost, is NOT something the American public would stand for. To promote attacks on American agriculture would be political suicide. Agriculture is very effectively supported, and promoted by our government, with all sorts of low cost loans, multiple federal & state subsidies, large tax incentives & significant tax breaks. Agriculture is so important to our society, it has its own large well funded division of federal government, the Department of Agriculture. Alternatively, domestic mining provides this nation with every mineral the nations complete infrastructure, national security, and economy is built from, and totally dependent on. Without a consistent competitively priced source of domestic minerals, America could not even maintain its modern infrastructure, or economy. Without mining, modern agriculture could not even exist. Resulting in a downward spiral of American agriculture, to the point Americans, and America as a whole, would no longer be able to feed itself. The eventual end result being dramatically increasing poverty, and near starvation in America. All things deprived from domestic mining have a direct effect on every aspect of American life. Yet American, and politicians will support attacks the American mining industry. Why is that? It is short sighted, and foolish for the American government not to support domestic mining, the same way it supports domestic agriculture. Plainly, one could not exist without the other. The American economy, in every way, is dependent on domestic mining. Why is it, there is no Federal Department of Domestic Mining? With publicity, support, funding, and clout equal to the Department of Agriculture. Every large modern industrialized nation in the world, has an equivalent, to a Federal Department of Domestic Mining, except America. It is simply illogical, America has no such thing to insure America can provide for its fundamental mineral necessities. Certainly, the environment of America, is of great concern. However, even at a 3rd grade schooling level. Common sense mandates, there must be a balance of environmental concern, with an equal concern, that America provide itself with the basic fundamental necessities, derived from mining, to maintain itself. Otherwise, Americas infrastructure, economy, and position as a world power will decline at a steeply accelerating rate. Please publicly support domestic mining in America. Not only today, but for the sake of all future generations of Americans. Please help this great Nation, by informing politicians of these vital concerns.
  4. Every newborn infant in AMERICA will need a lifetime supply of: 750 pounds of zinc 800 pounds of lead 1,500 pounds of copper 3,593 pounds of aluminum 32,700 pounds of iron 26,550 pounds of clays 28,213 pounds of salt and 1,238,101 pounds of stone, sand, gravel and cement. FROM WHERE SHALL IT COME? SUPPORT THE AMERICAN MINING INDUSTRY SUPPORT MINING DOMESTIC MINERAL DEPOSITS IN AMERICA The Mining Laws beginning in America since 1866. Culminating in the Mining Law of 1872, which is 30 USC, 22 et seq, still fully functional today. Has, as a free enterprise system, provided this great nation with all its mineral necessities. Which effectively provided America with every mineral needed. To build this GREAT NATION, into a world power, as it exists today. Mining in America, is one of the most heavily regulated industries in the Nation. Every aspect is covered by multiple laws & regulation. To INSURE effective protection of our environment. The mining law of 1872, contains no environmental protection. As, in 1872, that was given little thought. Since 1872, approximately 2, 128 laws, and millions of regulation have been passed in America. That do INSURE environmental protection nation wide. IN FACT, American mining law today, as supplemented by all other environmental laws. Is the most environmentally conscious in the world. Complete with strict enforcement mechanisms, to insure that. Sadly, today many politicians, for no good or logical reason. Want to repeal this Nations great mining law system. To replace it with some other untested system, including high royalties on all minerals produced. Such a change, would radically destabilize the mineral security of this nation. Adding significant costs, tax & royalties to everything American consumers use. It would also drive the American mining industry, to move off shore. Further destabilizing the American economy. Now, in these trying economic times. We need to maintain & support the American mining industry, more, rather than less. We need to insure our own economic future, from domestic mineral deposits. Rather than purchase them, from foreign sources. We need jobs in America, now more than ever. So that American workers can provide for themselves. It is ANTI- AMERICAN, to send those jobs off shore. It is ANTI-AMERICAN to destabilize the very industry that provides our economic security. GOD BLESS AMERICA, KEEP IT STRONG, INDEPENDENT & SECURE. OTHERWISE THE AMERICAN WAY OF LIFE & DREAM WILL FADE INTO OBSCURITY. WHAT MINING MEANS TO AMERICANS THE CORNERSTONE OF THE AMERICAN WAY OF LIFE Most people pass their days with no thought of the role mining plays in their lives. They know where to buy the things they want but seldom consider the origins. Food comes from a grocery...electricity from a wall socket...tools from a hardware store...cars from a dealer...appliances from a department store...and so on. If we do think of how these things are created, many of us probably begin with farms, factories and power stations. In fact, they all begin with mining. Without minerals and coal, we could not till our soil, build our machines, supply our energy, transport our goods or maintain any society beyond the most primitive. Our horn of plenty starts with a hole in the ground. But extracting minerals and coal from the earth is only part of a miner's job. Protection of the environment--the air, land and water--is a necessary part of every mining operation. Miners respect the earth from which they take the minerals necessary for everyone's lives. Mining: The Bedrock of Everyday Life Most Americans have probably never seen a mine, except perhaps for a rock quarry or a gravel pit, yet mining touches everyone's life. Consider, for example, how very different modern society would be without the automobile, telephone, computer and television...or the fuel and electricity to make them work, more than half of which is generated from coal mined in the United States. Few people realize that an automobile contains about 15 different mineral materials, a color TV set about 35 and a telephone about 40. Consider too... Agriculture Farm implements and fuel, fertilizers and irrigation systems, transportation of produce from fields to markets--all require minerals. Construction Minerals are literally society's building blocks. Concrete for foundations and nails for shingles, plumbing and wiring, ducts and insulation, cranes and bulldozers--all require minerals. Skyscrapers, hospitals, bridges, factories, fast food restaurants--rocks and minerals are needed everywhere. Transportation Trucks and trains, cars and planes, subways and ships, bicycles and space shuttles--all require minerals. Iron is needed for train and subway rails; gravel, crushed stone, tar, asphalt, road salt and cement are needed to build our roads and keep them usable and safe throughout the year. Communications Telephone and television, faxes and computer modems, relay satellites and radio stations, paper mills and printing presses--all require minerals. Homes & Offices Kitchen appliances and computers, toys and typewriters, stereos and photocopiers--all require minerals. National Defense Missiles and machine guns, helmets and submarines, tanks and field hospitals--all require minerals. Environmental Protection Platinum is used for catalytic converters in cars to keep our air clean; limestone helps neutralize acid in our lakes and streams; zeolites stabilize our soils and filter the air--minerals are needed to protect our environment. Energy Coal, oil and uranium fuel our cars, light our homes and provide heat and air conditioning for our comfort. Beyond that, drilling oil wells and digging coal, manufacturing turbines and stringing transmission wires, collecting solar heat and cutting firewood with a saw--all require minerals. In fact, nearly 60 percent of our electricity is generated from coal that has been mined in the United States, shipped to utility plants on a transportation system that depends upon minerals, and then distributed to our homes, schools and businesses using copper wire and steel or aluminum transmission line supports. Keystones of Destiny Throughout history, civilizations have been shaped by their use of minerals. Mineral supplies have determined the rise and fall of empires, the patterns of populations and advances in industry and the arts. The Stone Age saw man create crude weapons that gave him prowess as a hunter, primitive implements that enabled the beginnings of agriculture, flints that struck fire when needed and tools that provided the means to imprint images upon the walls of caves. Although gold and silver had been hammered into decorative forms for ages before, the science of metallurgy was discovered when man learned to melt copper about 3500 BC Along the Nile and in the Fertile Crescent of the Tigris and Euphrates Rivers, he turned this new ability to the making of weapons, ornaments and utensils for advancing civilizations. Much later he discovered that adding tin to copper resulted in a harder alloy; thus the Bronze Age was born. Then, when the Hittites came upon the secret of working another metal, the Iron Age began. Their armaments of iron made them supreme in Western Asia until others mastered their secret. Much later, adventurers from Spain followed in the wake of Columbus to exploit the New World for riches. But it was the permanent settlers in America and elsewhere who found vastly greater wealth. They found it in coal, iron ore and other humble minerals that made possible the Industrial Revolution and its bountiful capacity for generating prosperity from the goodness of the ground. New inventions and new mineral discoveries helped the United States become a world power. Today we live in the Age of Technology. Preoccupation with the wonders of science tends to obscure the role of minerals, but they are just as necessary for the spaceships of the future as for the steam engines of the past. Minerals remain our keystones of destiny. Heritage of Wealth National self-interest and common sense suggest that the United States should act vigorously to explore and develop its domestic minerals potential. In many ways, this is now a more formidable undertaking than at any time in the past, because this country has "skimmed off the cream" of much of its natural wealth. It's worth remembering that the year 1776 not only witnessed the birth of the nation but also the invention of the steam engine, which made possible the Industrial Revolution. The nation and its industry developed hand in hand, and rapid progress was based largely on the ready availability of minerals in great abundance. Inventions like the cotton gin, the reaper and the steam locomotive created a huge demand for iron. Discovery of a "mountain of solid iron ore 150 feet high" near Lake Superior in 1844 was only the first of many that made this region, known as the Mesabi Range, the most productive source of iron the world has ever known. The coming of the telegraph, telephone and electric lights spurred an enormous demand for copper, and fabulous deposits were to be found in Michigan, Montana, Utah and Arizona. Rich deposits of lead and zinc were developed along the Mississippi. Here as elsewhere, the miners were followed by construction crews, road builders, merchants and farmers. It was miners, not gunslingers, who truly formed the vanguard for settling the nation. Gold and silver in the West transformed some ragged prospectors into instant millionaires and provided great wealth for investment in the growing industries of the country. Although the individual prospector still has a highly useful role to play, the day when a miner with a burro and a pick is likely to discover a fabulous lode of ore is long gone. Today it is necessary to explore more widely and deeply than ever before and often for more disappointing results. Having to dig deeper for lower grade ores requires a tremendous outlay of capital. Where once a miner was equipped with little more than a shovel and a cart, today advanced machinery, high technology and stricter environmental and safety standards require the mining industry to invest billions of dollars each year to extract the minerals needed to run the country. Expanding Demand Because minerals and fossil fuels are so important in our everyday life, demand for them has grown as our society has become more complex. U.S. demands for minerals not only have grown in diversity, but also have grown in quantity. Today the Unites States with less than 5 percent of the world's population and 7 percent of its land area, consumes about a quarter of the entire globe's minerals production. As population increases, technology advances and the standard of living continues to climb, demand for the earth's resources also will grow. Indeed, it is now necessary to produce 40,000 pounds of new minerals each year for each American and to produce 1 billion tons of coal each year for electric power and other uses. A newborn infant will need a lifetime supply of 800 pounds of lead 750 pounds of zinc 1,500 pounds of copper 3,593 pounds of aluminum 32,700 pounds of iron 26,550 pounds of clays 28,213 pounds of salt and 1,238,101 pounds of stone, sand, gravel and cement. Minerals Working for America In the face of our mounting demand for minerals of every kind, America is becoming more and more dependent upon foreign sources of supply. Today we must import these percentages of our annual needs: 18 percent of iron ore, 84 percent tin, 94 percent tungsten, 70 percent zinc, 66 percent nickel, 75 percent chromium and virtually all our manganese, aluminum ore (bauxite), graphite, cobalt and columbium, which is used in steel making and super alloys. Some of these vital materials come mainly from countries of social, political and economic instability. The United States is vulnerable to foreign events over which it has little influence. On the other hand, there are some bright spots where the United States has become less dependent on foreign sources and has reduced its trade deficit because mining companies have risked capital and manpower to start new mines and expand old ones. In 1987 the first platinum mine outside of South Africa and the former Soviet Union was opened in Montana. The Stillwater mine now provides some of this strategic mineral that formerly had to be imported from politically unstable countries. Platinum, the world's most precious metal, is important not only for its use in electronics, but also for its use in catalytic converters, one of the most important environmental protection advances. Gold, too, is being mined at a greater rate in the United States, particularly since technological advances have allowed lower grades of ore to be mined economically. As late as 1980, the United States imported 82 percent of the gold used by domestic manufacturers. Thanks to increased output, this demand now is being filled by U.S. gold production, and in 1994, $1.4 billion worth of gold was exported. Altogether, that represents greater than a $10 billion turnaround in our balance of trade. Minerals for Our Future In order to assure continued sources of minerals, Americans must be allowed to explore for elusive mineral deposits. Mining has been called the art of looking for a needle in Nature's haystack. One must dig for minerals where they are, not where one might wish they were. Much untapped potential lies beneath public lands, primarily in the West. Yet governmental policies have been closing more and more of these lands to mineral exploration and development. Almost three-fourths of our vast public lands had been declared "off limits" to mining, an area equal in size to nearly all the states east of the Mississippi. These public lands, mainly in the western United States, particularly Alaska, hold the greatest chance of future discoveries that will maintain the U.S. mineral resource base. Mining could be allowed on public lands and still leave the overwhelming share of them free for wildlife, scenic beauty, recreational opportunities and preservation of wilderness. Otherwise, the country runs the risk of having its minerals supplies shut off abroad and locked up at home. The General Mining Law provides for the right of prospectors and geologists to enter the nonrestricted public lands to look for minerals. If they discover a deposit, the law also allows them to extract the minerals. Other laws guarantee that the miners will protect the environment and the public safety. Preserving the Environment Public concern about the quality of the environment has intensified in recent years and has brought some beneficial reforms. Today, for example, detailed reclamation plans must be approved by government officials and local permitting groups even before mining begins. Mining operations, including smelting and refining, can be pursued while meeting necessary standards for the protection of human health. Still, some temporary environmental disturbance is inevitable if there is to be minerals production. Another question of public concern is the effect of surface mining on the land. Today surface mining is practiced in all 50 states and provides over 60 percent of the coal we use and more than 95 percent of the domestic output of phosphate rock, clays, copper, uranium, iron, crushed stone and gravel. Yet, there is another astounding fact: Despite extensive exploration, during the entire history in U.S. well over 99 percent of the land surface never has been touched by mining. In earlier times, technologies were primitive and, unfortunately, so were the attitudes of some operators, who left the landscape scarred. Today, such irresponsible approaches are prohibited by law. Through extensive environmental planning, for instance, coal producers now return all mined land to the same or better condition than existed before the mining took place. Other mineral producers also spend millions of dollars reclaiming mine sites. Underground mining does not disturb the land in the same way as surface mining, but the mining companies take great care to protect the water and wildlife surrounding their operations, too. Industry also is cleaning up the air by reducing sulfur dioxide emissions from coal-burning utility plants by nearly 30 percent since 1973, even though coal use has increased by about 85 percent. New improvements are being made with the use of clean coal technologies, which have been developed and tested in laboratories and plants around the country and are now ready for commercial use. America has enough coal to provide its energy for centuries to come, and these new processes to remove coal's impurities will help protect the environment for future generations. Recycling of Materials While exploration and development of new resources are clearly necessary and ought to be accelerated, there is another way to increase the availability of the minerals the country needs. They can be recycled for renewed use. Recycling has been practiced for many years, particularly in the case of such precious metals as gold and silver. But scrap iron, copper from automobile wiring and radiators, lead from batteries, and other metals also are recycled. Sixty-eight percent of all steel produced eventually is recycled to be used again. For instance, an old car is crushed, shredded and fed into a state-of-the-art electric steelmaking furnace and may be used again in a shiny new car. Energy is saved, too--each year, steel recycling saves the energy equivalent to meet the electrical power needs of Los Angeles for more than eight years. Recycling of aluminum, especially aluminum cans, has risen dramatically as Americans learn that reuse helps conserve our resources. More than 65 percent of the aluminum beverage cans sold in the United States now are being collected and returned for recycling. Recycling conserves our resources and the energy it takes to convert them into usable form. Although recycling is only a partial answer to our total mineral needs, new technologies are promoting increased recycling and will continue to do so as our natural resources become scarcer. What Mining Means to Americans In sum, mining can be conducted with careful regard for our health, respect for ecological needs, and the determination to help fulfill the material aspirations of all peoples. What mining means to Americans is coal-fired electricity, cars to drive, televisions to watch, tractors and fertilizers to grow our food, buildings in which to work, homes where we live, computers to relay our thoughts...all those things that make a civilized world. Mining touches every part of our lives.
  5. General Mining Laws (30 USC § 22 et., seq) Grant the following rights to valid unpatented mining claim owners. “Lands open to purchase by citizens: Except as otherwise provided, all valuable mineral deposits in lands belonging to the United States, …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 … under regulations prescribed by law, and according to the local customs or rules of miners in the several mining districts [states], so far as the same are applicable and not inconsistent with the laws of the United States“. 30 USC § 22. "Under the mining laws a person has a statutory right, consistent with Departmental regulations, to go upon the open (unappropriated and unreserved) Federal lands for the purpose of mineral prospecting, exploration, development, extraction and other uses reasonably incident thereto." (See 30 U.S.C. § 21-54, 43 C.F.R. § 3809.3-3, 0-6). The discovery of a valuable mineral deposit within its limits validates a mining claim located on public land in conformance with the statute and its locator acquires an exclusive possessory interest (valid existing private property rights) in the claim; a form of real property which can be sold, transferred, mortgaged, or inherited, without infringing the paramount title of the United States. 30 U.S.C. § 26; Cole v. Ralph, 252 U.S. 286, 295 (1920); Forbes v. Gracey, 94 U.S. 762, 767 (1877). The claimant has the exclusive right to possession and enjoyment of all the surface included within the lines of the locations, but the United States retains title to the land. 30 U.S.C. § 26, 35; Union Oil Co. of California v. Smith, 249 U.S. 337, 349 (1919); Wilbur v. U.S. ex rel. Krushnic, 1930, 50 S.Ct. 103, 280 U.S. 306, 74 L.Ed. 445; California Coastal Comm'n v. Granite Rock Co., 480 U.S. 572, 575, 107 S.Ct. 1419, 1422, 94 L.Ed. 2d 577 (1987); Swanson v. Babbitt, 3 F.3d 1348, 1350 (9th Cir. 1993). 30 U.S.C. § 26 addresses the "locators' rights of possession and enjoyment" as follows: "The locators of all mining locations on the public domain so long as they comply with the laws of the United States, and with State and local regulations not in conflict with the laws of the United States governing their possessory title, shall have the exclusive right of possession and enjoyment of all the surface included within the lines of their locations." There is no question that reasonable access to a valid mining claim cannot be denied. 36 C.F.R. § 228.12; see United States v. James and Marjorie Collard, 128 IBLA 266, 291 (1994). 16 U.S.C. § 481, Use of Waters: All waters within boundaries of national forests may be used for domestic, mining, milling, or irrigation purposes under the laws of the state wherein such national forests are situated or under the laws of the United States and the rules and regulations established thereunder. Valid federal mining claims are "private property" 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); Oil Shale Corp. v. Morton, 370 F.Supp. 108, 124 (D.Colo. 1973). 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. 1993). A locator has the right of possession against all intruders and the right to protect his possession and to work the land for valuable minerals. Miller v. Chrisman, 140 Cal. 440, 447, 73 Pac. 1083, 74 Pac. 444, 98 Am. St. Rep. 63 (case affirmed 197 U.S. 313, 25 Sup. Ct. 468; Weed v. Snook, ubi supra; Merced Oil Mining Co. v. Patterson, 153 Cal. 624, 625, 96 Pac. 90; s. c., 162 Cal. 358, 361, 122 Pac. 950; McLemore v. Express Oil Co., 158 Cal. 559, 562, 112 Pac. 59, 139 Am. St. Rep. 147., Garthe v. Hart, 73 Cal. 541. The term “vested mining right” includes both a right established by use, as well as a right established by permit. (See; TransOceanic Oil Corporation v. Santa Barbara (1948) 85 Cal.App.2d 776; Avco Community Developers, Inc. v. South Coast Regional Comm’n. (1976) 17 Cal.3d 785, 790 “A permit becomes a vested property right where the permittee has incurred substantial liabilities and performed substantial work in reliance on the permit“; Goat Hill Tavern v. City of Costa Mesa (1992) 6 Cal.App.4th 1519; Hansen Bros. Enterprises v. Board of Supervisors of Nevada County (1996) 12 Cal.4th 533 (“Hansen”).) The holder of a claim supported by a discovery need not seek patent; his unpatented mining claim remains a fully recognized possessory right. 30 U.S.C. § 39; United States v. Locke, 471 U.S. 84, 86 (1985). If a discovery of a "valuable mineral deposit" is made, the claim can be held indefinitely so long as the annual assessment work is performed, the necessary filings are made, fees are paid, and a valuable mineral deposit continues to exist. See Best v. Humboldt Placer Mining Co., 371 U.S. 334, 336, 83 S.Ct. 379, 382, 9 L.Ed. 2d 350 (1963). 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). Such an interest may be asserted against the United States as well as against third parties (see Best v. Humboldt Placer Mining Co., 371 U.S. 334, 336 (1963); Gwillim v. Donnellan, 115 U.S. 45, 50 (1885)) and may not be taken from the claimant … without due compensation. See United States v. North American Transportation & Trading Co., 253 U.S. 330 (1920); cf. Best v. Humboldt Placer Mining Co. "Uncompensated divestment" of a valid unpatented mining claim would violate the Constitution. 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). A valid location, though unpatented, is a grant in the nature of an estate in fee and if such an estate is taken by the United States, just compensation must be made. See 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. ______________________________ 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. As such, Congress clearly abrogated, and California forever expressly conceded all rights to control the disposition of how the federal government disposes of federal public domain lands within its boundaries. Provisions of SB 670 prohibit all suction dredge gold mining statewide in California, for an indefinite period of time. As such, SB 670 suction dredging gold mining ban is an unlawful constraint on mining claim owners use of federal public domain in California. As it clearly conflicts with the federal mandate that states cannot pass law or regulation “inconsistent” with, or that “impairs” 30 USC § 22. The application of the General Mining Law to national forests was specifically affirmed by Congress in the Organic Act, which makes the national forests “subject to entry under the existing mining law of the United States and the rules and regulations applying thereto.” 16 U.S.C. § 482; see Wilderness Soc’y v. Dombeck,168 F.3d 367, 374 (9th Cir. 1999). The Organic Act also allows the Secretary of Agriculture to make rules regulating the “occupancy and use [of National Forest land]n” 16 U.S.C. § 551. Nothing in the Organic Act, however, “shall be construed as prohibiting . . . any person from entering upon such national forests for all proper and lawful purposes, including that of prospecting, locating, and developing the mineral resources thereof.” 16 U.S.C. § 478. While the Secretary of Agriculture may reasonably regulate mining on National Forest land to protect surface resources, the authority to manage the mineral estate on all federal land is vested in the Secretary of the Interior. See 16 U.S.C. § 472 (transferring power from Secretary of the Interior to make laws regarding National Forest reserves, but “excepting such laws as affect” the prospecting and entering of such lands); see also Best v. Humboldt Placer Mining Co., 371 U.S. 334, 336 (1963) Additionally, while the Mining of Act of 1872 originally expressed no legislative intent, Congress declared its intent to retain and manage the surface resources of located unpatented mining claims when it passed the Multiple Use Mining Act. California Coastal, 480 U.S. at 582. The Bureau of Land Management (BLM) is responsible for managing the mineral resources on federal lands and the USFS (under the Secretary of Agriculture) is responsible for the management of surface impacts of mining on federal lands. Id at 585. Both FLPMA and the National Forest Management Act pre-empt the "extension of state land plans onto unpatented mining claims in national forest lands." Id The Federal Land Policy and Management Act of 1976 (43 U.S.C. 1701-1782), requires the Secretary of the United States Department of the Interior to develop and implement land use plans for the various public lands. This Act specifically gives the Secretary of the Interior the discretion to preempt state and local land use plans if they are inconsistent with the federal development scheme. 43 U.S.C. 1712©(9). The policies contained in FLPMA explicitly state that the management, protection, disposition and disposal/withdrawal of federal lands is vested in the federal government and not with the state. In short, a state cannot dictate to the federal government, or a federal agency what specific land uses are or are not allowed on federal lands. The SB 670 suction dredge gold mining prohibition on valid mining claims, on federal public domain lands, also clearly conflict with other major federal mandates. Including the Federal Land Policy and Management Act of 1976 (FLPMA), 43 U.S.C. §1701 et seq. FLPMA 43 U. S. C. § 1702. Definitions (e) The term “public lands” means any land and interest in land owned by the United States within the several States … without regard to how the United States acquired ownership. (j) The term “withdrawal” means withholding an area of Federal land from settlement, sale, location, or entry, under some or all of the general land laws, for the purpose of limiting activities under those laws in order to maintain other public values in the area or reserving the area for a particular public purpose or program; FLPMA 43 U.S.C. §1712 (e) (3) Withdrawals made pursuant to section 204 of this Act [43 USCS Sec. 1714] may be used in carrying out management decisions, but public lands shall be removed from or restored to the operation of the Mining Law of 1872, . . . only by withdrawal action pursuant to section 204 [43 USCS Sec. 1714] or other action pursuant to applicable law: FLPMA 43 U.S.C. § 1732(B)… “no provision of this section or any other section of this Act shall in any way amend the Mining Law of 1872 or impair the rights of any locators or claims under that Act, including, but not limited to, rights of ingress and egress“. FLPMA § 302(B). Less than 5,000 acres of federal public domain lands may only be withdrawn from entry, occupation and use under The General Mining Laws by the Secretary of Interior. More than 5,000 acres can only be withdrawn with the explicit consent of Congress pursuit to provisions of the Federal Land Policy and Management Act of 1976 (FLPMA), 43 U.S.C. §1701 et seq. Provisions of SB 670 not only “limit” mining activity on federal public domain lands, they expressly prohibit such activities. As such, SB 670 mining prohibitions constitute a “withdrawal” pursuant to FLMPA. The point being, only the Secretary of the Interior, or Congress may make such withdrawals. Clearly, no state has any authority make federal public domain land withdrawals. Public land under the ownership of the United States. “The power over the disposition of such land and the minerals contained therein is in Congress and not in the states“. (McLemore v. Express Oil Co. (1910) 158 Cal. 559, 562; Moore v. Smaw (1861) 17 Cal. 199, 218-219.) A regulation (a de facto closure) which removes [public domain lands] from its prior use, or from mineral entry, is a withdrawal within the meaning of the Federal Land Planning and Management Act of 1976, (FLPMA). It “operates to remove lands from public use” and, as such, constitutes a “withdrawal” subject to FLPMA. (Mountain States Legal Foundation v. Andrus, (D.C. (Wyo.) 1980) 499 F.Supp. 383; FLPMA §204©; 43 USCA §1714©; FLPMA §103(j); 43 USCA §1702(j).) State jurisdiction over federal land "does not extend to any matter that is not consistent with full power in the United States to protect its lands, to control their use and to prescribe in what manner others may acquire rights in them." Utah Power, 243 U.S. at 404. If Congress so chooses, federal legislation, together with the policies and objectives encompassed therein, necessarily override and preempt conflicting state laws, policies, and objectives under the Constitution's Supremacy Clause, U.S. Const. art. VI, cl. 2. See Kleppe, 426 U.S. at 543 ("'A different rule would place the public domain of the United States completely at the mercy of [the State]'" (quoting Camfield v. United States, 167 U.S. 518, 526 (1897)). When a State through its entities or officials voluntarily elects to participate in a federal program knowing that a consequence of participation is a waiver of immunity from suit, the State’s waiver of immunity is just as much an “intentional relinquishment or abandonment of a known right or privilege” (College Sav., 527 U.S. at 682) as a waiver that is expressly embodied in state law. Congress has authority under the Constitution to condition state access to a federal program or benefit on a waiver of the State’s immunity from suit, federal law determines the consequences of the State’s voluntary actions, and any state effort to negate that condition through reliance on state law would be preempted by the Supremacy Clause. Lawrence County v. Lead-Deadwood Sch. Dist. No. 40-1, 469 U.S. 256, 257-258 (1985) A State may not simultaneously accept the benefits of a federal program and fail to comply with the conditions upon which those benefits are extended. Townsend v. Swank, 404 U.S. 282, 286 (1971) (state rule that conflicts with the conditions on which federal funds are offered is “invalid under the Supremacy Clause”). It is absolutely established that a valid unpatented placer mining claim is in fact a Statutory Federal Grant of “private property” derived from 30 U.S.C. § 21-54. All unpatented placer mining claims situated in California are on federally owned lands, under jurisdiction of the USFS, or BLM. Otherwise none would exist, as federal land is the only place an unpatented mining claim can be initiated, and held. As long as the Federal government retains title, the federal interest in providing free access to its own land in order to promote mining is sufficient to preempt any state law that fundamentally bans such use. Thus under standard preemption analysis any state legislation, or regulation that conflicts with this overriding federal , must fail. Under the Supremacy Clause, any state law that conflicts with a federal law is preempted. Gibbons v. Ogden, 22 U.S. 1 (1824). 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, Perez v. Campbell, 402 U.S. 637, 651-52, 91 S.Ct. 1704, 29 L.Ed.2d 233 (1971). A conflict exists if a party cannot comply with both state law and federal law. In addition, even in the absence of a direct conflict between state and federal law, a conflict exists if the state law is an obstacle to the accomplishment and execution of the full purposes and objectives of Congress. Crosby v. Nat’l Foreign Trade Council, 530 U.S. 363, 372-73 (2000). In determining whether a state law is a sufficient obstacle, the courts examine the federal statute as a whole and identify its purpose and intended effects and then determine the impact of the challenged law on congressional intent. State law can be pre-empted in either of two general ways. If Congress evidences an intent to occupy a given field, any state law falling within that field is pre-empted. If Congress has not entirely displaced state regulation over the matter in question, state law is still pre-empted to the extent it actually conflicts with federal law, that is, when it is impossible to comply with both state and federal law, or where the state law stands as an obstacle to the accomplishment of the full purposes and objectives of Congress. California Coastal Comm’n v. Granite Rock Co., 480 U.S. 572, 581 (1987) State regulations are permissible on federal lands only to the extent they are not inconsistent with or in conflict with the United States. Brubaker v. Board of County Comm 'rs, El Paso County, 652 P.2d 1050, 1058 (Colo. 1982). However, not all state regulation of mining claims is permissible, and state laws prohibiting activities authorized under federal mining laws are not permissible. South Dakota Mining Ass 'n v. Lawrence County, 977 F.Supp 1396, 1403 (D.S.D. 1997). Small scale suction dredging is the primary exploration, and production method for recovering placer gold on valid placer mining claims over federal public domain lands, open to mineral entry under the General Mining Laws (30 USC § 22 et., seq). The vast majority of all small scale suction dredge gold mining in California takes place on unpatented, or patented mining claims situated on or within federal public domain lands. With only rare exception, small scale suction dredging is the only viable environmentally friendly means that ordinary men have to economically benefit from right to mine (private property rights) granted to them under 30 USC § 22. Indisputably, 30 USC § 22 is a federal land [mining claim] disposal law, including a grant to the owner, the right to mine applicable minerals therein. ______________________________ California SB 670, effective August 6, 2009 SECTION 1. Section 5653.1 is added to the Fish and Game Code, to read: 5653.1. (a) The issuance of permits to operate vacuum or suction dredge equipment is a project pursuant to the California Environmental Quality Act (Division 13 (commencing with Section 21000) of the Public Resources Code) and permits may only be issued, and vacuum or suction dredge mining may only occur as authorized by any existing permit, if the department has caused to be prepared, and certified the completion of, an environmental impact report for the project pursuant to the court order and consent judgment entered in the case of Karuk Tribe of California et al. v. California Department of Fish and Game et al., Alameda County Superior Court Case No. RG 05211597. (B) Notwithstanding Section 5653, the use of any vacuum or suction dredge equipment in any river, stream, or lake of this state is prohibited until the director certifies to the Secretary of State that all of the following have occurred: (1) The department has completed the environmental review of its existing suction dredge mining regulations, as ordered by the court in the case of Karuk Tribe of California et al. v. California Department of Fish and Game et al., Alameda County Superior Court Case No. RG 05211597. (2) The department has transmitted for filing with the Secretary of State pursuant to Section 11343 of the Government Code, a certified copy of new regulations adopted, as necessary, pursuant to Chapter 3.5 (commencing with Section 11340) of Part 1 of Division 3 of Title 2 of the Government Code. (3) The new regulations described in paragraph (2) are operative. © The Legislature finds and declares that this section, as added during the 2009-10 Regular Session, applies solely to vacuum and suction dredging activities conducted for instream mining purposes. This section does not expand or provide new authority for the department to close or regulate suction dredging conducted for regular maintenance of energy or water supply management infrastructure, flood control, or navigational purposes governed by other state or federal law. (d) This section does not prohibit or restrict nonmotorized recreational mining activities, including panning for gold. ____________________________ 1. Plainly, in granting California statehood, Congress clearly abrogated, and California forever expressly conceded all rights to control the disposition of how the federal government manages, or disposes of federal public domain lands within its boundaries. 2. Unquestionably, the Federal General Mining Laws (30 USC § 22 et., seq) open all applicable federal public domain lands to mineral entry, occupation, mining use as a statutory right expressly granted to U.S. citizens. 3. indisputably, the Federal General Mining Laws (30 USC § 22 ) mandate States regulatory authority is expressly limited to regulations “not inconsistent with the laws of the United States“. 4. Irrefutably, by multiple express Acts of Congress the authority to manage the mineral estate and/or mining operations on all federal land is vested in the Secretary of the Interior (BLM) and/or in National Forests by the Secretary of Agriculture (USFS). 5. Incontrovertibly, the Federal Land Policy and Management Act, and the National Forest Management Act pre-empt the "extension of state land plans onto unpatented mining claims ." 6. Unmistakably, the Federal Land Policy and Management Act expressly precludes any State “withdrawal” of Federal public domain lands from application of the General Mining Law. As States have no authority to preempt Federal law. 7. Certainly, valid unpatented mining claims are ‘private property”, although such use is limited to mining, and uses reasonably incident thereto. 8. Clearly, all valid unpatented mining claims, and their viable economic use are fully protected from uncompensated “taking” by provision of the Fifth Amendment of the U.S. Constitution, as well as Article 1, § 19 of California’s Constitution. ______________ Given the insurmountable magnitude of express Federal statutory protections granted by Federal law, regarding valid unpatented mining claims. As well as voluminous Supreme Court case law verifying those same protections, and fully validating associated mining rights. Without doubt, SB 670 will be struck down in Federal Court, as being in direct conflict with, and preempted by multiple provisions of overriding Federal law. ________________ Furthermore, SB 670 legislation contains no “savings” or “severability” clause. As such, if any part of it is struck down, what remains is also. Meaning, all of SB 670 is void, as if it never existed. As a consequence of that, suction dredging in California would no longer be a California Environmental Quality Act (CEQA) “project”.
  6. Suction dredge gold mining, on valid mining claims is a perfectly legitimate LAND USE. Nonconforming (grandfathered) uses of land. These are land uses that would not be permitted under current regulations, but which were established before the regulations went into effect. Once established, they "run with the land" - that is, they automatically continue in force when the land is sold. Meaning, such nonconforming land uses can continue to operate under the rules/regulations that existed prior to the regulatory change. Nonconforming rights are "vested property rights". There is bedrock solid case law on the subject in California & Nation wide (including mining issues). Federal law that governs all public domain lands adhere to the long standing rule of law protecting “Vested - Valid Existing Rights”. As an example, both pre & post Federal Land Policy Management Act (FLPMA) public domain land withdrawals, where such lands are withdrawn from mineral entry under the General Mining Laws expressly acknowledge, and grant clear Constitutional protection to Vested Valid Existing Rights, where they exist, prior to any land withdrawal date. It stands that, all patented mining claims, as well as unpatented mining claims that pre-existed ANY suction dredge regulation have those vested property rights. For that matter, any valid unpatented mining claim existing in California LAST year (pre SB 670), would be exempt (grandfathered), from any new regulation. FLPMA mandates federal public domain may ONLY be withdrawn from mineral entry, and use(under the General Mining Laws) by express consent of Congress, or in in certain instances, by the Secretary of Interior. The current SB 670 mining prohibition on all lands state wide constitutes a FLPMA “withdrawal” only Congress may make. No State has legislative authority, or any power whatsoever to ignore, override, or abrogate Acts of Congress.
  7. Spread depends on pistol barrel length. All work at 3 to 5 ft, for head shots. If you want longer range, you should have minimum 4 inch barrel. 4, 6 or longer inch barrel will extend 1 shot kills to 10 or 15 ft. Under 4 inch barrel, at 10 or 15 ft, will not "usually" get you 1 shot kills. 410, or 20 gauge is great, as you can knock down grouse & other game birds with it. But a shotgun is rough to pack on narrow cliff side, or tight/thick brushy trails
  8. California State Agencies, The Governor & Attorney General are being sued in FEDERAL COURT……IN CALIFORNIA…..BY SOME BIG INDUSTRY…(WITH HUGE CLOUT & WELL FUNDED)…..about most of the same basic issues contained in PLP v. SB 670 complaint & pleadings against SB 670. This case has direct bearing on ours. ~~~~~~~~~~~~~~~~~~~ UNITED STATES DISTRICT COURT EASTERN DISTRICT OF CALIFORNIA NATIONAL PETROCHEMICAL & REFINERS ASSOCIATION, AMERICAN TRUCKING ASSOCIATIONS, THE CENTER FOR NORTH AMERICAN ENERGY SECURITY, and THE CONSUMER ENERGY ALLIANCE, Plaintiffs, V. JAMES GOLDSTENE, in his official capacity as Executive Officer of the California Air Resources Board; MARY D. NICHOLS, DANIEL SPERLING, KEN YEAGER, DORENE D’ADAMO, BARBARA RIORDAN, JOHN R. BALMES, LYDIA H. KENNARD, SANDRA BERG, RON ROBERTS, JOHN G. TELLES, and RONALD O. LOVERIDGE, in their official capacities as members of the California Air Resources Board; ARNOLD SCHWARZENEGGER in his official capacity as Governor of the State of California; and EDMUND G. BROWN, JR. in his official capacity as Attorney General of the State of California, Defendants. COMPLAINT FOR DECLARATORY AND INJUNCTIVE RELIEF AND JURY DEMAND JURISDICTION 20. Subject matter jurisdiction is founded on 28 U.S.C. §§ 1331 and 1343 because this case arises under the Constitution and laws of the United States. VENUE Venue is proper in this Court under 28 U.S.C. § 1391 b. Defendants maintain their offices within the Eastern District of California and the events giving rise to the claims herein occurred within this judicial district. THREE CLAIMS Violation of the Commerce Clause FOURTH CLAIM Violation of the Supremacy Clause Is unconstitutional under the Supremacy Clause because it conflicts with and stands as an obstacle to the accomplishment and execution of the full purposes and objectives of the federal laws and regulations. Defendants are purporting to act within the scope of their authority under state law in enforcing and implementing the LCFS. Defendants are liable to Plaintiffs for proper redress under 42 U.S.C. § 1983 because the LCFS deprives Plaintiffs’ members of the rights, privileges, and immunities secured by the Supremacy Clause of the United States Constitution. RELIEF REQUESTED WHEREFORE, Plaintiffs respectfully request the following relief: A. A declaratory judgment, pursuant to 28 U.S.C. § 2201, that the LCFS violates the United States Constitution and is unenforceable; B. A preliminary and permanent injunction enjoining the Defendants from implementing or enforcing the LCFS; C. An order awarding Plaintiffs their costs and attorneys’ fees pursuant to 42 U.S.C. § 1988; and D. Such other and further relief as the Court deems just and proper. DEMAND FOR JURY TRIAL Pursuant to Federal Rule of Civil Procedure 38 b , Plaintiffs demand a trial by jury in this action of all issues so triable. LINK TO FULL COMPLAINT http://www.npra.org/files/020210_LCFS_Complaint_Filed.pdf
  9. The "new info" is the listing of several ESA fish, Coho salmon, etc. ~~~~~~~~~~~ 30 U.S.C. § 22. Lands open to purchase by citizens Except as otherwise provided, all valuable mineral deposits in lands belonging to the United States, … 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 … under regulations prescribed by law, and according to the local customs or rules of miners in the several mining districts [now = states], so far as the same are applicable and not inconsistent with the laws of the United States. “ AND NOT INCONSISTANT WITH THE LAWS OF THE UNITED STATES“. (emphasis added) Irrefutably, federal law is the supreme law of the land & preempts any state law in conflict with overriding federal law. It takes no legal genius, wizard, or lawyer to determine that the provisions of SB 670 prohibiting mining state wide (including all public domain lands) for an indefinite period of time are certainly preempted by federal law. Simply because that state law mining prohibition is clearly “INCONSISTANT” with the laws of the United States. Which promotes, encourages and provides for mineral entry on applicable federal public domain lands. It is impossible to even raise a rational argument otherwise.
  10. Anybody have a clue what this is? Found near the Feather river (CA), on a ridge side in a teriary channel gravel deposit. More than a mile off the road & no trails or mine workings within miles. Was about a foot under the surface. It's heavy like a cannon ball & metal for sure. About 5 inchs long, 4 inchs wide & about 3 inchs thick. Old channel there is about 3 million years old.
  11. 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©], 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) (“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
  12. http://www.epa.gov/region10/pdf/permits/npdes/idg370000_be_01_2010.pdf JANUARY 2010 FEDERAL EPA SMALL SCALE SUCTION DREDGE STUDY Conclusion: “***EPA has determined that issuance of this permit is not likely to have an adverse effect on essential fish habitat (EFH), federally listed threatened or endangered (T&E) species or critical habitat. ***” A few folks need to send this link to CA DFG RE: New small scale suction dredge study CEQA literature mstopher@dfg.ca.gov
  13. moissanite = silicon carbide Perhaps that stone carries enough silicon carbide to confuse your tester.
  14. That is the (on or before) date, the AG motion to dismiss must be answered by PLP. No face to face verbal anything that I know of, just filings. Jerry Hobbs will post the PLP answer online, once submitted. Which, should be fairly soon.
  15. I WONDER HOW CA-DFG IS GOING TO COMPLY WITH CA-APA I gather they will just ignore the following APA mandates. __________________ The Administrative Procedure Act (APA) establishes rulemaking procedures and standards for state agencies in California. The requirements set forth in the APA are designed to provide the public with a meaningful opportunity to participate in the adoption of state regulations and to ensure that regulations are clear, necessary and legally valid. The APA is found in the California Government Code, section 11340 et seq. State regulations must also be adopted in compliance with regulations adopted by OAL (see California Code of Regulations, Title 1, sections 1-280). 11346.3. (a) State agencies proposing to adopt, amend, or repeal any administrative regulation shall assess the potential for adverse economic impact on California business enterprises and individuals, avoiding the imposition of unnecessary or unreasonable regulations or reporting, recordkeeping, or compliance requirements. For purposes of this subdivision, assessing the potential for adverse economic impact shall require agencies, when proposing to adopt, amend, or repeal a regulation, to adhere to the following requirements, to the extent that these requirements do not conflict with other state or federal laws: (1) The proposed adoption, amendment, or repeal of a regulation shall be based on adequate information concerning the need for, and consequences of, proposed governmental action. (2) The state agency, prior to submitting a proposal to adopt, amend, or repeal a regulation to the office, shall consider the proposal's impact on business, with consideration of industries affected including the ability of California businesses to compete with businesses in other states. For purposes of evaluating the impact on the ability of California businesses to compete with businesses in other states, an agency shall consider, but not be limited to, information supplied by interested parties. It is not the intent of this section to impose additional criteria on agencies, above that which exists in current law, in assessing adverse economic impact on California business enterprises, but only to assure that the assessment is made early in the process of initiation and development of a proposed adoption, amendment, or repeal of a regulation.
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