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old gold miner

SB 670 Ca dredge ban

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ONE DOWN, as of today................. :olddude::rasberry:

The director of California's Department of Fish and Game is resigning after 18 months in the position.

Donald Koch was appointed by Gov. Arnold Schwarzenegger in April 2008 and had a somewhat controversial confirmation process in the Legislature.

Lawmakers allowed the entire yearlong confirmation period to run before certifying him. Democratic leaders used the confirmation process to pressure the administration to improve the department rather than to criticize Koch.

Citing reasons "unrelated to my duties" in a Wednesday letter to the governor, obtained by The Bee, Koch said his resignation is effective Nov. 1.

"I am truly grateful for the opportunity you provided me to serve as director," he wrote.

Department spokeswoman Jordan Traverso said Koch wasn't available for comment and declined to elaborate on the reason for his departure. She said Koch was not asked to resign and his reasons have nothing to do with his duties at the department or friction with the administration.

Koch was formerly director of Fish and Game's North Coast Region and maintains a home there. He came out of retirement to take the director's job and has lived in Sacramento, apart from his family, for much of that time.

"He is leaving for personal reasons and to spend more time with his family," Traverso said.

The administration, she said, won't consider naming a replacement until after Nov. 1.

Before Koch was appointed, Fish and Game was overseen by an interim director for seven months after the 2007 resignation of Ryan Broddrick, who was appointed by Schwarzenegger in 2004.

Koch's departure comes at a difficult time for the state as it struggles with challenges, including game warden shortages, budget problems that hinder wildlife management and historic efforts to rewrite water law, restore the Sacramento-San Joaquin Delta and adopt marine sanctuaries.

"This is somewhat shocking," said Todd Tognazzini, president of the California Fish and Game Wardens Association. "We have been through a substantial number of directors over a very short period of time. But if he's got personal reasons, we certainly would respect that."

~~~~~~~~~~~~

San Francisco Chronicle on October 4, outdoor columnist Tom Stienstra quipped that "A weird side story to this year's trout-stocking affairs has been DFG Director Don Koch's impersonation of 'The Invisible Man.'"

"Since January, Koch has refused requests from media, including The Chronicle and radio shows, for an explanation of the DFG's trout stocking program," noted Stienstra. "DFG did not respond to repeated requests I made for hatchery logs and stocking numbers. Cogdill's office also has been unable to obtain this data in order to verify that DFG's numbers add up and comply with AB7."

A coalition of groups, including the Karuk Tribe, Klamath Riverkeeper, Sierra Fund and Environmental Protection and Information Center, this spring opposed Koch's confirmation as director by the Senate Rules Committee for a variety of reasons, including the Department's unwillingness to implement badly needed changes to forestry practice rules and the DFG's refusal to adopt new suction dredge mining regulations. Senate President Pro tem Darrell Steinberg and the Committee put the confirmation on hold, due to concerns by Legislators that the Governor and Resources Secretary Mike Chrisman were imposing constraints upon Koch that didn't allow him to do his job of protecting the state's fish and game resources effectively, but they later confirmed his nomination.

"Donald Koch's resignation opens the door for real leadership at CDFG," said Scott Harding, executive director of the Klamath Riverkeeper after hearing that Koch had resigned. "We're hoping for a new director that will truly work to protect and restore the Klamath's imperiled fisheries and wildlife."

“I hope the governor selects a replacement that possesses the greatest intellect, knowledge and proven interest in protecting and enhancing California’s fisheries and wildlife," said Byron Leydecker, chair of Friends of the Trinity River.

The resignation by Koch occurs in the context of Schwarzenegger's campaign to build a peripheral canal and new dams to export more water from the California Delta to San Joaquin Valley agribusiness and southern California. The Schwarzenegger administration, by allowing record exports of water out of the estuary in recent years, has helped to engineer the unprecedented collapse of Central Valley salmon, Delta smelt, longfin smelt, striped bass, green sturgeon and other fish populations. Schwarzenegger's total disregard of fish, fishing rights and the environment secured his winning of Field and Stream magazine's "Outdoor Villian" of the year award for 2008.

Koch also leaves at a time the Governor is under fire by a broad coalition of grassroots environmentalists, recreational anglers, commercial fishermen, Indian Tribes and seaweed harvesters that are opposing Schwarzenegger's fast track Marine Life Protection Act (MLPA process) on the North and South Coast of California. They charge the process for being rife with conflict of interest, mission creep, racism and corruption of the democratic process. They also blast the process for targeting fishermen, seaweed harvesters and Indian Tribes that sustainably harvest seafood while doing nothing to protect the ocean from the impacts of pollution, water diversions and the threat to the marine ecosystem's posed by corporate plans to install wave energy facilities and more oil rigs off the California coast.

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Can anyone tell me where to find Public Lands for the Peoples financial statements? I'm very interested to see how and where all our donated money is being spent. Since a 501©(3) organization can't get involved in engaging in political activities, and can only spend a limited amount per year on lobbying, I am curious. Does PLP have to make their finances public? I can't find ANYTHING on their site. Thanks for your help! - Terry

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I doubt PLP has a financial statement, that covers recent donations & expenditures

Most corporate filings are either quarterly, bi-annual, or annual.

Email Jerry & ask him. He would know, better than anyone

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Thanks so much! I have donated myself and I believe in the organization, I just can't find any 990's for their Tax ID: 95-4521318 - I'll email Jerry. I think I'm just feeling frustration. As a professional, I see all this money and effort being expended, with almost nothing to show for it. Yes, we absolutely must have organizations like PLP, and warriors like Jerry Hobbs - BUT, don't we need to start working harder on public opinion and perception?

Litigation means (to me) that we have waited too long and now have to fight it out in a court where public opinion shapes the laws. People keep saying "it is our right," without seeming to understand their "rights," are completely dependent on which way the POLITICAL wind is blowing. Sorry about the rant - just feel so darn helpless to change the way the tide is coming in. Cheers! - Terry

I doubt PLP has a financial statement, that covers recent donations & expenditures

Most corporate filings are either quarterly, bi-annual, or annual.

Email Jerry & ask him. He would know, better than anyone

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Thanks so much! I have donated myself and I believe in the organization, I just can't find any 990's for their Tax ID: 95-4521318 - I'll email Jerry. I think I'm just feeling frustration. As a professional, I see all this money and effort being expended, with almost nothing to show for it. Yes, we absolutely must have organizations like PLP, and warriors like Jerry Hobbs - BUT, don't we need to start working harder on public opinion and perception?

Litigation means (to me) that we have waited too long and now have to fight it out in a court where public opinion shapes the laws. People keep saying "it is our right," without seeming to understand their "rights," are completely dependent on which way the POLITICAL wind is blowing. Sorry about the rant - just feel so darn helpless to change the way the tide is coming in. Cheers! - Terry

Terry, you really need to stop saying that....... it has already been shown to you that PLP has many MAJOR accomplishmnets. One major one you should be happy with is you can now stay/camp/live on your claim as long as you want while you are actively mining. Forest Circus 14 day rule got smashed by PLP! You like McCrack and his goons are in the business of mining miners... not good for the rest of us when you misuse the intent of claim ownership, even if it is legal........

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El Dorado, I understand completely that you do not like me - even though we have never met, and I've tried - Lord knows I've tried - to understand your point of view. Now you are comparing me to Dave M.? You don't know anything about the business I run, yet you've decided it isn't good for gold miners. Tell me El D, how do you feel about the GPAA, Keene, Minelab, Whites, Garrett... don't every one of these companies "mine the miners?" Don't they put money back into the local economies where they sell their equipment or have memberships? This crap about "mining the miners" is as old as the first American gold rush in Georgia - and it's been a dubious argument just as long. This is America - that is what we do!

Why is questioning the return on our investment with PLP wrong? I was brought up to believe in the American way, and I bled and killed to defend your rights - as well as mine - to live free and ask all the darn questions I want to. I don't mind you disagreeing with me, hell my own kids and relatives do that every day. I do get to wondering about your personal attacks though. I'm starting to think you married one of my ex-wives or something. The business I run has turned a lot of people on to our hobby, helps local dealers sell a lot of gold mining equipment and even a few gold claims, puts a lot of money into local prospector's pockets, gold prospecting club membership funds, restaurants, bars and motels.

If you don't like what I have to say, or what I do - that's cool. I am just not convinced that the PLP action plan is the ONLY way to go. That is not to say the organization isn't important or needed - it is. However, unlike you and others, I believe we need to start spending a little MORE money on EDUCATION, AWARENESS, and yes PUBLIC RELATIONS! I really don't like paying for some California lawyer's new boat while we are getting the crap beat out of us in the state. But as I said, that is just my humble opinion. Unless we sway public opinion all the money and lawyers in the world won't stop the Green Meanies - period.

Here's a couple more questions El D; Why doesn't PLP post their annual 990 on line like many other charity orgs? What could it hurt? Why not have a little transparency for folks that have donated to this cause? Show me the money taken in, and where it's going. I am not asking to run the show, just to know what the show is. Peace be with you - Terry

Terry, you really need to stop saying that....... it has already been shown to you that PLP has many MAJOR accomplishmnets. One major one you should be happy with is you can now stay/camp/live on your claim as long as you want while you are actively mining. Forest Circus 14 day rule got smashed by PLP! You like McCrack and his goons are in the business of mining miners... not good for the rest of us when you misuse the intent of claim ownership, even if it is legal........

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Guest bedrock bob

Yeah Terry. Old El D is quite a piece of work. Just a slab of noisy bedrock if you ask me. You would think that someone of his age and experience would have figured it out by now.

I consider it flattering to be so unacceptable to him. Outside of the wilderness a man is measured by the company he keeps.

Bob

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This old slab of bedrock has many nuggets laying on it and thanks.......

Equipment manufacturers sell products. Organizations (new 49'rs, GPAA) that use claims to sell dreams are the big difference, at least in my mind. That is not what claims are all about! Granted it is legal.

Terry there was a previous post where you said PLP has accomplished very little and it was clearly pointed out to you then about many of their major accomplishments. They take issues to task via litigation and do not brag about it. I do not unlike you, I have never met you. I do not like what you do with claims and am very willing to express that opinion liked or not, don't take it personal. If I called you a &^$%$@^&% that would be different. WSPA is a great example of use of claims where many non owners get to use them............. Motherlode Goldhounds is a great example of a club that promotes prospecting without owning claims.

Call or write Jerry and I am sure he will point you in the right direction

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Here's a couple more questions El D; Why doesn't PLP post their annual 990 on line like many other charity orgs? What could it hurt? Why not have a little transparency for folks that have donated to this cause? Show me the money taken in, and where it's going. I am not asking to run the show, just to know what the show is. Peace be with you - Terry

Frankly, I think it is ASTUTE, not to post that 990 filing info online.

Please allow me the grace to explain why.

Without doubt, litigation is costly. It is like a legal “war” in the sense that, it is “no holds barred”, so long as a modicum of civility is maintained, the rules of court procedure, and formalities are followed.

Certainly, opponent’s in legal battles often have far different financing. Some have vast , near limitless amounts to spend, others have very limited minuscule amounts to spend. I learned, one ploy in litigation by well funded groups, such many enviro, and other similar special interest groups, (like those who support SB 670), have deep pockets.

Because of that fact, they can often tilt the playing field in an unfair way, to win. They simply drown any opponent with paperwork, court filing after filing, to increase cost, expense, time allocation, etc, beyond what the opponent can afford to defend against.

In doing so, right or wrong, they simply outspend the opponent & win with that tactic. In any conflict, legal or otherwise. It’s certainly best, not to blatently disclose the “limits” of your recourses. Because, anyone knowing your limits, can simply exceed them, in order to win, no matter who is right & who is wrong.

Below is a SHORT list of SB 670 supporters:

Sierra Fund

Sierra Club California

Sierra Nevada Alliance

Cal Trout

California Coastkeeper Alliance

California Tribal Business Alliance

Clean Water Action

Friends of the River

Karuk Tribe

Pacific Coast Federation of Fishermen's Associations

Planning and Conservation League

If you compare those groups combined finances, to that of PLP, and the small California miners in this SB 670 dispute.

We are clearly a midget David, facing a MONSTER GOLIATH.

So, best to stick together, with as little dissention amongst the ranks, as possible.

Rocking the boat, or jumping ship mid ocean can drown you.

Mark my words here. If able, any number of SB 670 supporters listed above will attempt to intervene in PLP vs. CA Governor & DF&G…. RE: SB 670.

This will increase our costs, and drag this litigation out, for as long as possible.

Something, we don’t want, or need.

So, lets stick together, because this is an open forum & again, mark my words.

Supporters of SB 670 read this forum.

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CA DF&G REGULATIONS IMPLEMENTING SB 670 DO NOT MEET THE REQUIRMENTS OF APA:

California Government Code Section 11346.1

(a) (1) The adoption, amendment, or repeal of an emergency

regulation is not subject to any provision of this article or

Article 6 (commencing with Section 11349), except this section and

Sections 11349.5 and 11349.6.

2) At least five working days before submitting an emergency

regulation to the office, the adopting agency shall, except as

provided in paragraph (3), send a notice of the proposed emergency

action to every person who has filed a request for notice of

regulatory action with the agency. The notice shall include both of

the following:

(A) The specific language proposed to be adopted.

(B ) The finding of emergency required by subdivision (B ).

(3) An agency is not required to provide notice pursuant to

paragraph (2) if the emergency situation clearly poses such an

immediate, serious harm that delaying action to allow public comment

would be inconsistent with the public interest.

(B ) (1) Except as provided in subdivision (c ), if a state agency

makes a finding that the adoption of a regulation or order of repeal

is necessary to address an emergency, the regulation or order of

repeal may be adopted as an emergency regulation or order of repeal.

(2) Any finding of an emergency shall include a written statement

that contains the information required by paragraphs (2) to (6),

inclusive, of subdivision (a) of Section 11346.5 and a description of

the specific facts demonstrating the existence of an emergency and

the need for immediate action, and demonstrating, by substantial

evidence, the need for the proposed regulation to effectuate the

statute being implemented, interpreted, or made specific and to

address only the demonstrated emergency. The finding of emergency

shall also identify each technical, theoretical, and empirical study,

report, or similar document, if any, upon which the agency relies.

The enactment of an urgency statute shall not, in and of itself,

constitute a need for immediate action.

A finding of emergency based only upon expediency, convenience,

best interest, general public need, or speculation, shall not be

adequate to demonstrate the existence of an emergency. If the

situation identified in the finding of emergency existed and was

known by the agency adopting the emergency regulation in sufficient

time to have been addressed through nonemergency regulations adopted

in accordance with the provisions of Article 5 (commencing with

Section 11346), the finding of emergency shall include facts

explaining the failure to address the situation through nonemergency

regulations.

(3) The statement and the regulation or order of repeal shall be

filed immediately with the office.

© Notwithstanding any other provision of law, no emergency

regulation that is a building standard shall be filed, nor shall the

building standard be effective, unless the building standard is

submitted to the California Building Standards Commission, and is

approved and filed pursuant to Sections 18937 and 18938 of the Health

and Safety Code.

(d) The emergency regulation or order of repeal shall become

effective upon filing or upon any later date specified by the state

agency in a written instrument filed with, or as a part of, the

regulation or order of repeal.

(e) No regulation, amendment, or order of repeal initially adopted

as an emergency regulatory action shall remain in effect more than

180 days unless the adopting agency has complied with Sections

11346.2 to 11347.3, inclusive, either before adopting an emergency

regulation or within the 180-day period. The adopting agency, prior

to the expiration of the 180-day period, shall transmit to the office

for filing with the Secretary of State the adopted regulation,

amendment, or order of repeal, the rulemaking file, and a

certification that Sections 11346.2 to 11347.3, inclusive, were

complied with either before the emergency regulation was adopted or

within the 180-day period.

(f) If an emergency amendment or order of repeal is filed and the

adopting agency fails to comply with subdivision (e), the regulation

as it existed prior to the emergency amendment or order of repeal

shall thereupon become effective and after notice to the adopting

agency by the office shall be reprinted in the California Code of

Regulations.

(g) If a regulation is originally adopted and filed as an

emergency and the adopting agency fails to comply with subdivision

(e), this failure shall constitute a repeal of the regulation and

after notice to the adopting agency by the office, shall be deleted.

(h) The office may approve not more than two readoptions, each for

a period not to exceed 90 days, of an emergency regulation that is

the same as or substantially equivalent to an emergency regulation

previously adopted by that agency. Readoption shall be permitted only

if the agency has made substantial progress and proceeded with

diligence to comply with subdivision (e).

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HERE IS ANOTHER CASE, THAT SHOOTS SB 670 IN THE HEAD

2006

The U.S. Supreme Court dealt Santa Clarita a tough blow this week by upholding the consent decree that allows Cemex to establish a 56.1-million-ton quarry planned in Soledad Canyon

The city claimed the consent decree was invalid because it contained a finding of pre-emption of state and local authority by the federal government that is not authorized by law.

Cemex was granted the mining rights by the Bureau of Land Management in 1990. The county had rejected the mine, but conceded when Cemex filed a lawsuit in federal court. County supervisors granted the mining permit in June 2004 under a court-approved consent decree.

The city appealed the decree, claiming it and the environmental impact report violate the California Environmental Quality Act, the federal Clean Water and Clean Air acts and the National Environmental Policy Act.

In October 2004, the state Attorney General's Office filed a friend-of-the-court brief in support of the city's stance, questioning the legality of the consent decree. The brief argued the settlement between Cemex and the County could hamper state and county enforcement of environmental laws. The consent decree says the county cannot "interfere with, conflict with, or otherwise frustrate or impair" the agreement with Cemex.

On February 13, 2006, the U.S. Ninth Circuit Court of Appeals affirmed the U.S. District Court's previous judgment that the Consent Decree was valid and entered into in good faith by CEMEX, Inc., the County of Los Angeles, and the United States in 2004.

The U.S. Supreme Court denied the city of Santa Clarita's lawsuit, or its request for review known as petition for certiorari, effectively allowing the Consent Decree to stand and the Soledad Canyon quarry project to move forward. The ruling prevents the city from further attempts to stop the legally binding Consent Decree from taking effect.

Cemex, Inc. v. County of Los Angeles, United States District Court Case No. CV 02 00747 (CAS)

Cemex Inc. v. L.A. County, No. 04-56050, UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT, February 10, 2006,

Overview: In a very brief order, the court upheld a consent decree. Acting as lead agency under California law, the County of Los Angeles, California, negotiated at arms length and in good faith to settle a dispute about a mining project, and the County obtained environmental concessions in exchange for its approval of the project.

................... :olddude:

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OGM, the response by CDFG to the petioners is an eye-opener. I'd like add this to the mix of things posted today by Jerry Hobbs of PLP. Here's the link.....

http://www.plp2.org/forum/showthread.php?p=1123#post1123

Gary

Environmental Lawsuits Rake in Billions for Lawyers

By Jake Putnam

Cheyenne--During harsh economic times, rancher Karen Budd-Falen reached the breaking point on a day last fall. Falen had read about a huge court settlement the Federal Government paid out to a non-profit environmental and after talking to the ranchers in the Western Legacy Alliance, it set her off.

Falen channeled the frustration into a quest; she wanted to know how much money the Federal Government had paid out in lawsuit legal fees over the past decade and what she found is astounding.

In just six years non- profit environmental groups filed more than 15-hundred lawsuits and in turn the Federal Government paid out more than $4.7 billion in taxpayer dollars in settlements and legal fees in cases against the U.S. government.

Between 2000 and 2009, Idaho’s Western Watersheds Project out of Hailey filed at least 91 lawsuits in federal district court with 31 appeals in federal appellate court according to Falen, who not only is a rancher but a former Department of Interior law clerk. She and husband Frank represent cattlemen in range issues throughout the west.

Falen often wondered how tiny non-profit organizations like Western Watersheds could afford an attorney like the famed Laird Lucas of Boise who is known as one of the best natural resource attorneys in the country.

“We tried to track the fees paid to environmental groups in certain federal courts. These guys are charging between $350 and $450 an hour in legal fees.” Falen says the Federal government is picking up the tab and adds: “In Federal District Court in Boise, over the last ten years, WWP received a total of $999,190 in tax dollars for ‘reimbursement’ for attorney fees and costs.”

“We’ve had a lot of litigation with WWP,” said Assistant U.S. Attorney Mark Haws of Boise. “We’ve have a lot of cases with them and they have prevailed on cases and been awarded Equal Access to Justice Attorney fees. I don’t have a total, but that amount wouldn’t surprise me.”

“It’s atrocious, as a private operator I can’t gather that kind of money to fight anything like that,” said rancher Ted Higley of Malta, Idaho. “If they’re going to fight personal causes it should be with their personal money, not government money.”

Falen’s research shows that of the cases filed by Western Watersheds in Idaho’s Federal Court, 19 went before Judge Lynn Winmill; eight resulted in decisions on merit with WWP prevailing with total attorney fees awarded to the tune of $746,184; six of the cases were settled by the feds paying of $118,000. WWP lost six cases but still managed a payday in two cases, but the payment amount is confidential. Falen’s findings show a pattern: there’s a payday in court, win or lose or draw.

“I’m not going to point fingers at WWP but there are organizations out there that are just sitting there scrutinizing, watching every decision an agency makes waiting for that ‘low hanging fruit’ to jump on-- just to get fees,” said U.S. Attorney Mark Haws.

“Nonprofit, tax exempt groups are making billions of dollars in funding,” said Falen. She says the majority of this legal fee money is not going into programs to protect people, jobs, wildlife, or endangered species but to fund more lawsuits from ‘non-profit environmental groups.

Farmers and Ranchers that struggle to make a living off the land are forced to spend money out of their pocket to defend themselves; that’s what happened to ranchers Tim Lowry and Paul Nettleton of Owyhee County.

The ranchers successfully defended a decade-long fight for water rights on their land against the BLM. The Idaho Supreme Court ruled on their side in a precedent setting case but the U.S. Supreme Court denied them attorney fees under EAJA from the government because the decision came in state court. That left the ranchers with a $1.5 million legal bill from a case in which the Federal Government dragged them into court.

“There’s a lot of a things wrong with this picture,” said Falen. “The federal government is spending billions in taxpayer dollars without any accounting of where the money is going or to whom it is going. There is no oversight in spending this money, especially the money that’s coming out of agency budgets that should be funding programs to protect public lands, national forests, ranchers, recreationists, wildlife and other land uses,” said Falen.

Falen’s research shows that between 2000 and 2009, Forest Guardians (NKA as WildEarth Guardians) filed 180 lawsuits in federal district courts with at least 61appeals in the federal appellate courts during the same time frame the Center for Biological Diversity filed at least 409 lawsuits in the federal district courts with at least 165 appeals in the federal appellate courts.

In addition she found over the past 15 years that the Wilderness Society filed 149 federal court lawsuits, the Idaho Conservation League filed 69 lawsuits, the Oregon Natural Desert Association filed 58 lawsuits, the Southern Utah Wilderness Association filed 88 lawsuits and the National Wildlife Federation filed an astonishing 427 federal court lawsuits.

Falen says she found cases in which the Federal Government paid legal fees for both sides of a case--just so they could turn around and sue the federal government who in turn will force ranchers off the range.

In 2001 the Western Watersheds Project sued Verl Jones of Challis claiming that the rancher violated the Endangered Species act by diverting water from a creek on his ranch to irrigate an alfalfa field, killing endangered bull trout. Federal District Court Judge Winmill ordered Jones to stop diverting water, which cut into the families hay production and nearly bankrupted the ranch. But the harshest blow came when Jones was ordered to pay $36,000.00 to Watershed’s attorney Laird Lucas. In the end the 9th Circuit Court of Appeal overturned Winmill’s decision and the order to pay Lucas, but the family was left with a $50,000 bill from their attorney.

Falen also documented numerous cases in which the federal government agreed to pay attorney fees, but hid the exact amount from public view. “Somewhere this has to stop and the government has to be held accountable for the money it’s spending,” adds Falen.

“If you just look at the raw number and say ‘why in the world is the United States paying a million dollars bankrolling them to sue us,’ well that’s what congress set up through EAJA. That’s the law, we’re bound by it,” said Mark Haws.

“My firm did this because it makes me so mad,” said Falen. She says agrees with Haws, these groups have mastered the art of filing suits and collecting taxpayer money from the Federal Government by “prevailing” in litigation. They can prevail either by winning the case on the merits or by the Justice Department agreeing that the group “prevailed” in a settlement.

The main funding source is called the “Judgment Fund.” It’s a Congressional line-item appropriation that’s used for Endangered Species Act cases, Clean Water Act cases, and with other statutes that directly allow plaintiffs like Western Watersheds to recover attorney fees just by filing, even if there’s no hope in winning.

“I wish we could get a payday just for showing up,” said rancher Ted Higley. Falen uncovered six years of paydays for ‘non-profit’ lawyers, she found:

In fiscal year 2003, the federal government made 10,595 individual payments from the Judgment Fund to federal court plaintiffs for a price tag of $1,081,328,420.00.

In 2004, the federal government made 8,161 payments from the Judgment Fund for $800,450,029.00.

In 2005, 7,794 payments were made from the Judgment Fund for a total of $1,074,131,007.00.

In 2006, the federal government made 8,736 payments from the Judgment Fund for $697,968,132.00.

In just the first half of fiscal year 2007, the federal government made 6,595 payments from the Judgment Fund for $1,062,387,142.00.

In total, $4,716,264,730.00 (that is billion with a “b”) in total payments were paid in taxpayer dollars from the Judgment Fund from 2003 through July 2007 for attorney fees and costs in cases against the federal government.

Falen says another major source of payments to “winning” litigants against the federal government is the Equal Access to Justice Act. Equal Access funds are taken from the “losing” federal agencies’ budget. So if the BLM loses a case in Federal District Court attorney fees are paid from the “losing” BLM office’s budget. “That’s money that could be used for range improvement, habitat enhancement, timber projects, and archeology and cultural clearances and other agency programs,” adds Falen.

Between 2003 to 2005, Region 1 of the Forest Service (Montana, North Dakota, northern Idaho) paid $383,094 in Equal Access to Judgment fees.

Between 2003 to 2005, Region 2 of the Forest Service (Wyoming, South Dakota, Colorado, Nebraska, Oklahoma) paid $97,750 in EAJA fees.

Between 2003 to 2005, Region 3 of the Forest Service (Arizona, New Mexico) paid $261,289.85 in EAJA fees.

Between 2003 to 2005, Region 4 of the Forest Service (southern Idaho, Utah, Nevada) paid $297,705 in EAJA fees.

Between 2003 to 2005, Region 5 (California) of the Forest Service paid $357, 023 in EAJA fees.

Between 2003 to 2005, Region 6 (Washington State, Oregon) of the Forest Service paid $282,302 in EAJA fees.

Out of the 44 total cases in which the Forest Service paid EAJA fees between 2003 and 2005, 35 payments went to ‘nonprofit’ environmental group plaintiffs.

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Just makes me want to puke.. on a lawyer. :angry-smiley-010[1]: Terry

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THE LINK TO THIS CASE, ANOTHER BULLET IN SB 670's HEAD KEEPS GOING BAD

(so I just cut & pasted it here)............... :olddude:

155 F3d 1005 South Dakota Mining Association Inc v. Lawrence County

155 F.3d 1005

29 Envtl. L. Rep. 20,043

SOUTH DAKOTA MINING ASSOCIATION, INC.; Homestake Mining

Company, of California; Wharf Resources, a Montana General

Partnership; Golden Reward Mining Company Limited

Partnership; Naneco Minerals, Inc.; Fred J. Gali; Iwalana

I. Gali, Plaintiffs-Appellees,

v.

LAWRENCE COUNTY, a Political Subdivision of the State of

South Dakota, Defendant-Appellee,

Jack Cole, Intervenor-Appellant.

No. 97-3861.

United States Court of Appeals,

Eighth Circuit.

Submitted April 20, 1998.

Decided Sept. 16, 1998.

Marvin D. Truhe, Rapid City, SD, argued (John Fitzgerald, Deadwood, SD, Rogert D. Hofer and David Pfeifle, Pierre, SD, Roger A. Tellinghuisen, Spearfish, SD, Linden R. Evans, Rapid City, SD, on the brief), for appellees.

William G. Taylor, Sioux Falls, SD, argued, for appellant.

Before McMILLIAN, LOKEN, and HANSEN, Circuit Judges.

HANSEN, Circuit Judge.

1

Jack Cole appeals the district court's1 grant of summary judgment in favor of the South Dakota Mining Association, Inc., Homestake Mining Company of California, Wharf Resources, Golden Reward Mining Company, L.P., Naneco Minerals, Inc., Fred J. Gali, and Iwalana I. Gali (collectively, the plaintiffs), and its order permanently enjoining enforcement of a Lawrence County, South Dakota, ordinance prohibiting the issuance of any new or amended permits for surface metal mining within the Spearfish Canyon Area. The district court ruled that the ordinance was preempted by the Federal Mining Act of 1872, 30 U.S.C. §§ 21-26 (1994). See South Dakota Mining Ass'n v. Lawrence County, 977 F.Supp. 1396, 1405-07 (D.S.D.1997). Cole, who intervened on the side of defendant Lawrence County, argues that the ordinance is not preempted. We affirm.I. Background

2

On November 5, 1996, a 51 percent majority of the voters of Lawrence County, South Dakota, approved an initiated ordinance that amended Lawrence County's zoning laws.2 The voter-approved ordinance adds the following language to the county's zoning provisions: "No new permits or amendments to existing permits may be issued for surface metal mining extractive industry projects in the Spearfish Canyon Area." The Spearfish Canyon Area defined in the ordinance includes approximately 40,000 acres of Lawrence County, encompassing about 10 percent of the total land area of the county. Approximately 90 percent of the area is within the Black Hills National Forest and is under the supervision and control of the United States Department of Agriculture's Forest Service, and the United States Department of Interior's Bureau of Land Management. This public land contains unpatented mining claims or properties which are open to the public for mineral developments. The remaining 10 percent of the area contains privately owned patented mining claims. The area is also home to "some of the most beautiful land in the Black Hills." South Dakota Mining Ass'n, 977 F.Supp. at 1398.

3

The following three paragraphs, containing the undisputed factual background, come from the district court's opinion.

4

Five mining companies have had active surface mining operations within Lawrence County in the past fifteen years. Two of the plaintiffs, Wharf Resources (Wharf) and Golden Reward Mining Company, L.P. (Golden), either had or currently have active surface mining operations. Both Wharf and Golden have patented and unpatented mining claims within the area defined in the ordinance. Some of Wharf's and Golden's unpatented mineral properties are undergoing active mineral exploration. Wharf is also conducting active surface mining on some privately owned patented mining claims within the area.

5

Two members of the South Dakota Mining Association who are not plaintiffs, LAC Minerals (U.S.A.) Inc. (LAC Minerals), and Brohm Mining Corp. (Brohm), also either had, or currently have, surface mining operations. LAC Minerals owns or controls patented and unpatented mineral properties within the Spearfish Canyon Area as defined in the ordinance. From 1988 to the fall of 1993, LAC Minerals operated the Richmond Hill Mine which was an active gold and silver surface mining operation. The mine was undergoing reclamation activities at the time of this action. Brohm owns or controls the Gilt Edge Mine, an active gold and silver surface mining operation.

6

Plaintiff Homestake Mining Company (Homestake) has both patented and unpatented mining claims within the area defined in the ordinance. Plaintiff Naneco Minerals, Inc., (Naneco) holds a state surface mine permit, but has not yet begun mining in the Spearfish Canyon Area. Naneco also owns or controls patented mining claims on privately owned land located within the Area. Plaintiffs Fred and Iwalana Gali own patented mining claims within the area defined as Spearfish Canyon. The Galis lease these mineral rights to mining companies while retaining a royalty.

7

The record shows that surface metal mining is the only mining method that has been used to mine gold and silver deposits located in the vicinity of the Spearfish Canyon Area in the past 20 years. (J.A. at 151, 158.) Although underground and other types of gold and silver mining are prevalent in parts of South Dakota, the record here discloses that surface metal mining is the only mining method that can actually be used to extract these minerals in the Spearfish Canyon Area. (Id. at 151-52, 158-59.) This is because the gold and silver deposits within the Spearfish Canyon Area are geologically located at the earth's surface. (Id. at 151-52, 159.) The plaintiff mining companies have also made substantial investments of both time and money to explore the area for mineral deposits and to develop plans for mining that conform to federal, state, and local permitting laws.

8

On February 24, 1997, the plaintiffs filed suit in federal district court against Lawrence County, alleging, among other claims, that federal and state mining laws preempted the county ordinance banning surface metal mining within the Spearfish Canyon Area. The plaintiffs sought a declaratory judgment to this effect and an injunction barring enforcement of the ordinance. On March 24, 1997, the plaintiffs filed a motion for summary judgment on their claim that federal and state mining laws preempted the ordinance. The plaintiffs and the county stipulated that no material facts were in dispute and that discovery was unnecessary pending the district court's resolution of the summary judgment motion.

9

On April 28, 1997, Jack Cole, a private landowner within the Spearfish Canyon Area, filed a motion to intervene and defend the ordinance. The plaintiffs did not object to Cole intervening, and the district court granted the motion. The court also granted the State of South Dakota and Action for the Environment (Action) leave to file amicus curiae briefs regarding the summary judgment motion. The state filed a brief in support of the plaintiffs' summary judgment motion and Action filed a brief opposing the motion. Cole joined in Action's brief.

10

Prior to any ruling on the summary judgment motion, the district court ordered the parties to brief the issue of whether the case presented a justiciable controversy. The court noted that even though the case was brought as a declaratory judgment action pursuant to 28 U.S.C. §§ 2201 and 2202, the action must be ripe for a federal court to resolve it. The parties then submitted briefs and affidavits regarding the ripeness issue.

11

The district court ruled that the action was ripe and that it would therefore decide the case on the merits. See South Dakota Mining Assoc., 977 F.Supp. at 1400. The court granted the plaintiffs' motion for summary judgment, ruling that the Federal Mining Act of 1872, 30 U.S.C. §§ 21-26, preempted the Lawrence County ordinance and ordered a permanent injunction barring enforcement of the ordinance. See id. at 1407. Cole appeals.3

II. Analysis

A. Ripeness

12

Although not raised by the parties in this appeal, we first analyze whether the present action is ripe for federal court adjudication. We have explained that "[r]ipeness is demonstrated by a showing that a live controversy exists such that the plaintiffs will sustain immediate injury from the operation of the challenged provisions." Employers Ass'n, Inc. v. United Steelworkers, 32 F.3d 1297, 1299 (8th Cir.1994). This means that "[a] plaintiff who challenges a statute must demonstrate a realistic danger of sustaining a direct injury as a result of the statute's operation or enforcement." Babbitt v. United Farm Workers Nat'l Union, 442 U.S. 289, 298, 99 S.Ct. 2301, 60 L.Ed.2d 895 (1979). A plaintiff does not have to "await consummation of threatened injury" before bringing a declaratory judgment action. Id. at 298, 99 S.Ct. 2301 (internal quotation omitted). Instead, an action is ripe for adjudication if the plaintiff faces injury that "is certainly impending." Id. (internal quotations omitted).

13

The plaintiffs here have shown a realistic danger of sustaining an immediate, direct injury as a result of the operation or enforcement of the challenged Lawrence County ordinance. Plaintiffs Homestake, Wharf, Golden, Naneco, and Fred and Iwalana Gali all own patented or unpatented mining claims within the Spearfish Canyon Area as defined in the Lawrence County ordinance. Plaintiff South Dakota Mining Association also has members who own patented or unpatented mining claims within the area. Under the plain text of the Lawrence County ordinance, none of the plaintiffs may be granted a new or amended permit for surface metal mining on any of their mining claims within the Spearfish Canyon Area. Because applying for and being denied a county permit for surface metal mining would be an exercise in futility, we will not require plaintiffs to do so before they may challenge the ordinance. See Sammon v. New Jersey Bd. of Med. Examiners, 66 F.3d 639, 643 (3d Cir.1995) ("Litigants are not required to make such futile gestures to establish ripeness."). We agree with the district court and conclude that the plaintiffs' preemption claim is ripe.

B. Preemption

14

Having determined that the plaintiffs' preemption claim is ripe, we now address Cole's challenge to the district court's order declaring the Lawrence County ordinance preempted by federal law and enjoining its enforcement. Cole argues that the Lawrence County ordinance is not preempted by the Federal Mining Act because the ordinance is a reasonable environmental regulation of mining on federal lands. Specifically, Cole claims that because the ordinance only bans one type of mining, surface metal mining, and does so only within a limited area, the ordinance does not prevent the accomplishment of the purposes and objectives of federal mining law.4

15

"We review the district court's grant of summary judgment de novo, applying the same standards as the district court." Mayard v. Hopwood, 105 F.3d 1226, 1227 (8th Cir.1997). Summary judgment is appropriate if the record "show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law." Fed.R.Civ.P. 56©. We view the facts and the reasonable inferences to be drawn from them in the light most favorable to the nonmoving party. Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587, 106 S.Ct. 1348, 89 L.Ed.2d 538 (1986). "Only disputes over facts that might affect the outcome of the suit under the governing law will properly preclude the entry of summary judgment." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986).

16

The Supreme Court has set forth the analysis we must apply to determine if a state law is preempted by federal law:

17

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.

18

California Coastal Comm'n v. Granite Rock Co., 480 U.S. 572, 581, 107 S.Ct. 1419, 94 L.Ed.2d 577 (1987) (emphasis added) (citations and internal quotations omitted); see also U.S. Const. art. VI, cl. 2 (supremacy clause). The same preemption analysis applies when a court is determining if federal law preempts a county ordinance. Hillsborough County v. Automated Med. Labs., Inc., 471 U.S. 707, 713, 105 S.Ct. 2371, 85 L.Ed.2d 714 (1985).

19

In this case, we must determine whether the Lawrence County ordinance is preempted because it conflicts with federal law. Specifically, we address whether the ordinance conflicts with the Federal Mining Act because it "stands as an obstacle to the accomplishment of the full purposes and objectives of Congress" embodied in the Act. Granite Rock, 480 U.S. at 581, 107 S.Ct. 1419 (internal quotation omitted). Thus, in analyzing whether the ordinance is preempted, we must first determine the purposes and objectives of Congress that are embodied in the Mining Act. Second, we must determine whether the ordinance stands as an obstacle to the accomplishment of these Congressional purposes and objectives.

20

To determine the purposes and objectives that are embodied in the Mining Act, we first look to the text and structure of statute itself. Peters v. Union Pac. R.R. Co., 80 F.3d 257, 261 (8th Cir.1996). Congress has codified its declaration of the federal government's policy towards mining:

21

The Congress declares that it is the continuing policy of the Federal Government in the national interest to foster and encourage private enterprise in (1) the development of economically sound and stable domestic mining, minerals, metal and mineral reclamation industries, (2) the orderly and economic development of domestic mineral resources, reserves, and reclamation of metals and minerals to help assure satisfaction of industrial, security and environmental needs, (3) mining, mineral, and metallurgical research, including the use and recycling of scrap to promote the wise and efficient use of our natural and reclaimable mineral resources, and (4) the study and development of methods for the disposal, control, and reclamation of mineral waste products, and the reclamation of mined land, so as to lessen any adverse impact of mineral extraction and processing upon the physical environment that may result from mining or mineral activities.

22

30 U.S.C. § 21a.

23

The Mining Act provides for the free and open exploration of public lands for valuable mineral deposits. Specifically, the statute states:

24

Except as otherwise provided, all valuable mineral deposits in lands belonging to the United States, both surveyed and unsurveyed, 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 and those who have declared their intention to become such, under regulations prescribed by law, and according to the local customs or rules of miners in the several mining districts, so far as the same are applicable and not inconsistent with the laws of the United States.

25

30 U.S.C. § 22. The Supreme Court has stated that the Congressional intent underlying this section is to reward and encourage the discovery of economically valuable minerals located on public lands. United States v. Coleman, 390 U.S. 599, 602, 88 S.Ct. 1327, 20 L.Ed.2d 170 (1968). Congress has further provided that the "locators" of mineral deposits on federal lands under § 22 shall have the exclusive right to extract those minerals if they comply with federal law and state and local laws that do not conflict with federal law. See 30 U.S.C. § 26. The Mining Act establishes a system whereby a prospector can "go out into the public domain, search for minerals and upon discovery establish a claim to the lands upon which the discovery was made." United States v. CurtisNevada Mines, Inc., 611 F.2d 1277, 1281 (9th Cir.1980).

26

Thus, as shown in the text and structure of the statute, Congress has set out several purposes and objectives in the Mining Act. These include the encouragement of exploration for and mining of valuable minerals located on federal lands, providing federal regulation 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 regulation is consistent with federal mining law. Having determined the purposes and objectives of the Mining Act, we next examine the second step of the preemption analysis--whether the Lawrence County ordinance stands as an obstacle to these purposes and objectives.

27

Both parties cite the Supreme Court's decision in Granite Rock to support their positions, and an examination of the case would aid us in applying the second step of our preemption analysis. In Granite Rock, a mining company brought a "purely facial" challenge to a California state law making it unlawful to mine on federal lands without first obtaining a permit from the state Coastal Commission. 480 U.S. at 580, 107 S.Ct. 1419. The mining company claimed that the state permit requirement was preempted by federal mining laws. Because the company had not applied for a permit, and it was unclear what requirements the company would have to meet to obtain a permit, the issue faced by the Supreme Court was relatively narrow: "whether Congress has enacted legislation respecting this federal land that would pre-empt any requirement that [the company] obtain a California Coastal Commission permit." Id. at 581, 107 S.Ct. 1419. Significant to this case, the Court stressed that the Coastal Commission did not argue that it had the authority to ban all mining. Id. at 586, 107 S.Ct. 1419 ("[T]he Coastal Commission has consistently maintained that it does not seek to prohibit mining of the unpatented claim on national forest land."). Instead, the Coastal Commission merely claimed that it could require the company to comply with certain reasonable regulatory requirements designed to protect the environment prior to obtaining a permit. Id. at 586-87, 107 S.Ct. 1419. In rejecting the company's argument that the permit requirement was preempted because it was an impermissible land use regulation, the Court first assumed without deciding that state land use regulations, which it defined as laws that "in essence choose[ ] particular uses for the land," were preempted. Id. at 587, 107 S.Ct. 1419. Second, the Court held that state environmental regulations, laws that "do[ ] not mandate particular uses of land but require[ ] only that, however the land is used, damage to the environment is kept within prescribed limits," would not always be preempted. Id. Because the Coastal Commission had identified "a possible set of permit conditions not pre-empted by federal law," conditions which would not prohibit the company from mining on federal land, the Court rejected the company's facial challenge and upheld the state permit law. Id. at 589, 107 S.Ct. 1419.

28

We initially note that, as in Granite Rock, the plaintiffs in this case bring a facial challenge to a local permit law. However, unlike Granite Rock, we are not confronted with uncertainty regarding what conditions must be met to obtain a permit for surface metal mining in the Spearfish Canyon area. The Lawrence County ordinance is a per se ban on all new or amended permits for surface metal mining within the area. Because the record shows 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, the ordinance's effect is a de facto ban on mining in the area. Thus, unlike Granite Rock, we are not faced with a local permit law that sets out reasonable environmental regulations governing mining activities on federal lands.

29

The ordinance's de facto ban on mining on federal land acts as a clear obstacle to the accomplishment of the Congressional purposes and objectives embodied in the Mining Act. Congress has encouraged exploration and mining of valuable mineral deposits located on federal land and has granted certain rights to those who discover such minerals. Federal law also encourages the economical extraction and use of these minerals. The Lawrence County ordinance completely frustrates the accomplishment of these federally encouraged activities. A local government cannot prohibit a lawful use of the sovereign's land that the superior sovereign itself permits and encourages. To do so offends both the Property Clause and the Supremacy Clause of the federal Constitution. The ordinance is prohibitory, not regulatory, in its fundamental character. The district court correctly ruled that the ordinance was preempted.

30

Finally, we note that in his reply brief, Cole points out that the Spearfish Canyon Area defined in the ordinance includes privately owned land that is outside the purview of the Federal Mining Act. Cole contends that the district court "erred in failing to separately analyze the ordinance's effect on the privately owned land." (Appellant's Reply Br. at 4.) Because Cole did not raise this argument in his initial brief, he has not preserved this error, and we do not address the claim. See United States v. Darden, 70 F.3d 1507, 1549 n. 18 (8th Cir.1995) ("Appellants generally must raise and brief all issues in their opening brief."), cert. denied, 517 U.S. 1149, 116 S.Ct. 1449, 134 L.Ed.2d 569 (1996).

III. Conclusion

31

Accordingly, we affirm the judgment of the district court.

1

The Honorable Richard H. Battey, Chief Judge, United States District Court for the District of South Dakota

2

The Lawrence County Board of County Commissioners did not draft the proposed ordinance. The Commissioners merely placed the proposed ordinance on the ballot pursuant to South Dakota state law after backers obtained the requisite number of signatures in favor of the ordinance. See S.D. Codified Laws § 7-18A-13 (Michie 1993). The ordinance became law when it was approved by a majority of the voters in Lawrence County. See id. § 7-18A-14

3

Lawrence County did not appeal the district court's ruling and has filed a brief in this court arguing in support of the district court's order invalidating the ordinance and enjoining its enforcement. Accordingly, Lawrence County is designated as an appellee before this court

4

We note that Cole also urges us to remand the case to the district court to allow further discovery regarding the purposes and policies underlying the ordinance. We reject this argument because these purposes and policies are immaterial to the preemption analysis here. See Perez v. Campbell, 402 U.S. 637, 651-52, 91 S.Ct. 1704, 29 L.Ed.2d 233 (1971) (holding that "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)

.Jurisdiction : South Dakota/ U.S. (Dist. S.D. 1997)

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Just makes me want to puke.. on a lawyer. :angry-smiley-010[1]: Terry

Terry, not to lecture here but keep in mind there are lawyers that are well worth their salt. To a degree it involves a willingness on their part as to how far they can and will continue when all sorts of motions other delaying tactics are used by the opposition, before calling it quits!

Considering the onslaught of intervention created and supported by law how would YOU rate the PLAYING FIELD on a scale of 1 to 10 re: the Plantiff or Defendent from the start.

A further defination between Plaintiff and Defendent insn't needed because we already know where it comes from, choose your side of litigation however "feeding the troff" is more open to one side than the other. Who gets hit for the bill upon lossing!??

Terry, beyond this I must also make a point as to the non-declaration by PLP regarding public disclosure of funding and participation, It's not required as I understand of the filings of a 501C3 none profit corporation. Many people did so (publish), but have since found their publishings where used against them in court.

PLP and Crew are an Outstanding Outfit and deserve many, many merits and Eagle scout badges if you will. If you have any questions contact Jerry Hobbs at the PLP website.

Gary

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Just makes me want to puke.. on a lawyer. :angry-smiley-010[1]: Terry

Terry, not to lecture here but keep in mind there are lawyers that are well worth their salt. To a degree it involves a willingness on their part as to how far they can and will continue when all sorts of motions other delaying tactics are used by the opposition, before calling it quits!

Considering the onslaught of intervention created and supported by law how would YOU rate the PLAYING FIELD on a scale of 1 to 10 re: the Plantiff or Defendent from the start.

A further defination between Plaintiff and Defendent insn't needed because we already know where it comes from, choose your side of litigation however "feeding the troff" is more open to one side than the other. Who gets hit for the bill upon lossing!??

Terry, beyond this I must also make a point as to the non-declaration by PLP regarding public disclosure of funding and participation, It's not required as I understand of the filings of a 501C3 none profit corporation. Many people did so (publish), but have since found their publishings where used against them in court.

PLP and Crew are an Outstanding Outfit and deserve many, many merits and Eagle scout badges if you will. If you have any questions contact Jerry Hobbs at the PLP website.

Gary

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Just makes me want to puke.. on a lawyer. :angry-smiley-010[1]: Terry

Terry, not to lecture here but keep in mind there are lawyers that are well worth their salt. To a degree it involves a willingness on their part as to how far they can and will continue when all sorts of motions other delaying tactics are used by the opposition, before calling it quits!

Considering the onslaught of intervention created and supported by law how would YOU rate the PLAYING FIELD on a scale of 1 to 10 re: the Plantiff or Defendent from the start.

A further defination between Plaintiff and Defendent insn't needed because we already know where it comes from, choose your side of litigation however "feeding the troff" is more open to one side than the other. Who gets hit for the bill upon lossing!??

Terry, beyond this I must also make a point as to the non-declaration by PLP regarding public disclosure of funding and participation, It's not required as I understand of the filings of a 501C3 none profit corporation. Many people did so (publish), but have since found their publishings where used against them in court.

PLP and Crew are an Outstanding Outfit and deserve many, many merits and Eagle scout badges if you will. If you have any questions contact Jerry Hobbs at the PLP website.

Gary

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LOL..... Gary.... did you hit the "post" key enough times? No need to answer...... :rolleyes:

I sure wish Nov 24 would get here. I cannot wait to see how the CA Attorney Generals office answer to the PLP vs SB 670 is going to read.

I bet they are squirming like cats on a hot tin roof, to come up with a reply, that isn't just plain foolish.

"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).

How could they get by this...... NOT.

Anyone want to argue that "suction dredging" on a placer claim doesn't fit.....mineral prospecting, exploration, development, extraction and other uses reasonably incident thereto. :inocent:

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).

Anyone want to argue that "suction dredging" on a placer claim doesn't include..........possession and enjoyment :inocent:

.................. :olddude:

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LOL..... Gary.... did you hit the "post" key enough times? No need to answer...... :rolleyes:

:yuk-yuk: Musta had a case of early morning hiccups and my computer was cooperating to boot.....I tryed to delete the others but the new forum format wasn't a help to my tired brain :zzzzz: and eventually I was timed-out from an editing standpoint. :huh:

I'm also waiting with "baited-breath" (worm on tongue) to the AG's reponse to PLP's filing.

Gary

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Given the AG’s staff, plus the extra time allowed to respond, as they requested & got an extension.

I would expect their answer to be lengthy, clutching at every wisp of smoke & slim threads they have to rebut with.

Because, wisps of smoke & slim threads are all they have, rather than anything clear, concise & definitive.

The PLP complaint was a shot gun blast, shooting all available law, fact & reasoning, why SB 670 is illegal.

Reality is, it hinges on one single thing.

FEDERAL LAW preempts conflicting state law that prohibits something federal law encourages & permits.

From their position, they will take the stance, SB 670 does not prohibit ALL MINING.

Thus, it is not preempted by federal law.

That stance has no merit, because suction dredging is the only form of gold mining that anyone of average means can utilize to economically mine small isolated deposits of placer gold on placer claims situated over California’s streams, rivers or waterways.

Certainly, there are other means, but to utilize them would revert technological evolution back 50 or 100 years.

Which would be the equivalent of banning modern automobiles, because we could use horses instead.

Plainly, the average small scale placer mining claim owner of today could not use bucket line dredges, drag lines & the like, to mine auriferous gravels from waterways.

1st, because the investment in equipment would not be worth the return;

2nd, you could never get permits to do so.

The point being, SB 670 prohibitions effectively bans all mining on 99.97 percent of all placer claims in California.

Which is equivalent of a complete prohibition on placer mining.

Because suction dredging is the only practical means to profit from mining small scale placer claims on all California waterways.

2nd, the court order cited in SB 670 covers only the Klamath, Salmon & Scott rivers, it is not state wide.

3rd, both the alleged need & laughable “findings” in SB 670 are unsubstantiated argument.

Rather than based on fact & clear scientific evidence

4th, California legislators clearly are “biased“ in-so-far they did not take a hard look at the facts, before passing SB 670.

Which is either arbitrary, stupid, negligent, clear malfeasance, or all combined.

5th, CA SMARA law categorically “exempts” mining operations of less than 1000 yards, within 1 acre.

Which, is about 25 times larger than an average suction dredge effects in a full season, on 1/25th of an acre.

6th, California’s statehood admissions act, clearly does not allow the California legislature to abrogate, or even “question” federal land disposal laws, which the federal mining law in fact is.

7th, both USFS & BLM have long standing stringent regulations covering suction dredging.

The state cannot credibly asset otherwise & those are the federal agencies that have authority to administer mining, on unpatented mining claims on federal, lands.

As federal lands are the only place “mining claims” can exist.

8th, There is a substantial body of preexisting federal case law against arbitrary mining prohibitions.

I could continue on for pages, but any one, or a combination of all of the above are ‘fatal” flaws in SB 670.

Frankly, the most ASTUTE thing the AG’s office could do, is quickly send a legal opinion to the Governor, that SB 670 cannot be well defended, nor won, and to continue litigation in defense of it, will only compound damages SB 670 caused.

The Governor could then inform the legislature of those facts, and request the legislature to immediately REPEAL SB 670.

Which they would plainly be stupid not to do, given a clear AG opinion SB 670 cannot be defended, nor won.

Doing so would make PLP verses SB 670 mute, except for damages & attorney costs/fee issues.

Which, are relatively small now & could be reconciled fairly quickly.

CA DF&G would begin issuing suction dredging permits immediately on the repeal of SB 670.

The statewide CEQA study & EIR could continue, as it has funds to do so now.

Based on those study findings, plus APA governed public hearings & public comment.

New suction dredging regulations, if any are found necessary could be them implemented.

Which, is what should have happened, without SB 670 anyway. :stupidrb:

So, we will wait & see what happens.......... :olddude:

Given the CA legislatures history of standing waist deep in muddy water, adamantly shouting to the world :yuk-yuk: , they are neither muddy, nor wet :yuk-yuk: .

I would assume, the wise prudent course of action set forth above is one they will not take.

The SB 670 litigation will drag out, costs, fees & damages will compound, CA will lose & the taxpayers of California will be billed for all of it.

That’s the way California politics, seem to work. :inocent:

The “rule of law”, will eventually prevail here, and it is clearly on our side.

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Clearly, owners of valid unpatented placer mining claims have both a federal statutory grant, as well as correlative riparian ownership of a share of the water naturally flowing through their mineral estate. Which permits them to put that water to beneficial use for mining purposes. Suction dredging to recover placer gold concentrated in river, or streambed auriferous gravels is plainly a beneficial use of water.

Beneficial use of free flowing water through a valid placer mining claim requires no permits or licenses, so long as the water use is reasonable, not significantly impounded, diverted away, or wasted. The right to use that water is a property right and can be protected against infringement in the same manner as any other property right; i.e., by appropriate court action.

Existing water law, historical use, and practice, as well as common sense provide that with any beneficial use of water, that use may degrade the quality of the water so used. Otherwise, any use of water would be impractical. As all consumption, irrigation, agricultural, municipal, or industrial use of water, most certainly involves a relative degree of degradation to that waters quality. If otherwise, the simple act of washing dishes, or clothing, watering your lawn, bathing, or flushing a toilet, would be unlawful.

Furthermore an individual grantee, or owner of a “beneficial use” of water flowing through his own property, or mineral estate requires no Endangered Species Act (ESA) “incidental take” permit. To take is defined as "to harass, harm, pursue, hunt, shoot, wound, kill, trap, capture, or collect, or to attempt to engage in any such conduct." 16 U.S.C. § 1532. “ Incidental take” means the action involved is incidental to, and not the purpose of, an otherwise lawful activity. "harm" is defined as "an act which actually kills or injures wildlife." 50 C.F.R. § 17.3.

If an ESA “take” permit, incidental or otherwise were required for beneficial water use. Every person, or family using water from any watershed, or drainage in California containing ESA listed fish, would be required to have such a permit, as their use certainly degrades water put to that use. Ponder also that, 3 million California sports fisherman require no ESA “take” permit, yet their sole purpose is to capture, and kill fish.

Proponents of SB 670 argue that suction dredge gold mining in California “harms” ESA listed fish, and their corresponding habitat. Because ESA regulation further explains that "uch act may include significant habitat modification where it actually kills or injures wildlife by significantly impairing essential behavioral patterns, including breeding, feeding, or sheltering."

Obviously, suction dredge gold mining in California water affects both water quality, and ESA listed fish habitat. Just, as all other beneficial water uses do, in one way or another. The California legislature, and SB 670 proponents ignore under pre-SB 670 dredging regulation, all suction dredge gold mining was clearly prohibited in all places, and at all times when and where suction dredging could have possible deleterious effects on salmon, their spawning habitat, and throughout times when eggs, or egg sack fry are maturing in spawning gravels.

Secondly, a large body of authoritative peer reviewed scientific studies of well regulated suction dredging gold mining with dredge orifices under six inches, individual, or cumulative effects are so minimal, negligible, fleeting that they are De Minimis, meaning unworthy of serious legal consideration, or consequence.

The state of California holds all water under the Public Trust Doctrine. Thus, all people can use water naturally flowing through federal public domain lands, such as national forests for drinking, cooking, bathing, swimming, rafting, boating, sports fishing, etc. However, those water uses are “implied” rights of use.

Whereas, the framers of SB 670, and the California legislature ignore, valid unpatented placer claim owners, have 1st; an express statutory grant, 2nd; riparian water rights & 3rd; a vested private property right to put that same free flowing water to beneficial use for mining purposes. Which gives all valid placer claim owners in California a higher priority, corresponding private property rights, and a protected legal interest far above all other incidental users of free flowing water within national forests, and/or BLM lands.

To emphasize that fact, all federal preservation type land withdrawals, such as the Wilderness Act, National Recreation Area Act, the Wild & Scenic Rivers Act, Federal Land Management Policy Act, ad infinitum, contain express provisions, that each, and every land withdrawal so made under their auspices, is subject to “Valid Existing Rights”.

Which absolutely includes water use, and mining rights pertinent to valid preexisting unpatented mining claims situated within such land withdrawals. To do otherwise would abridge Constitutional protections for “taking” private property, without just compensation first being paid to such owners.

Given these unequivocal facts, SB 670 provisions indefinitely prohibiting suction dredge gold mining in California is an unconscionable, unfair, discriminatory, prohibitive, unfounded law, that any competent federal court will swiftly overturn.

................. :olddude:

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PLP VERSES CA RE: SB 670 > THE JUDGE IT IS IN FRONT OF

Judge Morrison C. England Jr.

Federal Judicial Service:

U.S. District Court, Eastern District of California

Nominated by George W. Bush on March 21, 2002, to a seat vacated by Lawrence K. Karlton; Confirmed by the Senate on August 1, 2002, and received commission on August 2, 2002.

Education:

University of the Pacific, B.A., 1977

University of the Pacific, McGeorge School of Law, J.D., 1983

Professional:

1983-1988

Partner - Quattrin, Clemons & England, Sacramento, CA

1988-2002

United States Army Reserve, JAG Corps.

1988-1996

Partner - Quattrin, Johnson, Campora & England, Sacramento, CA

1996-1997

Judge - Municipal Court of California, County of Sacramento

1997-2002

Judge - Superior Court of California, County of Sacramento

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