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old gold miner

WHY PLP WILL WIN IN FEDERAL COURT RE SB 670

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EDMUND G. BROWN JR., State Bar No. 37100

Attorney General of California

ROBERT W. BYRNE, State Bar No. 213155

Supervising Deputy Attorney General

BRADLEY SOLOMON, State Bar No. 140625

BARBARA SPIEGEL, State Bar No. 144896

MICHAEL M. EDSON, State Bar No. 177858

ALLISON GOLDSMITH, State Bar No. 238263

Deputy Attorneys General

455 Golden Gate Avenue, Suite 11000

San Francisco, CA 94102-7004

Attorneys for Defendants State of California,

Governor Arnold Schwarzenegger, California

Department of Fish & Game, and Donald Koch

SUMMARY OF ARGUMENT:

This action must be dismissed in whole or in part for a variety of reasons, including:

1). The Eleventh Amendment bars all of PLP’s claims against the State and DFG, bars all of PLP’s state law claims against all defendants, and bars all of PLP’s claims for damages (including those for taking of private property).

2). This Court lacks jurisdiction over all of PLP’s claims: PLP lacks standing to bring them because its claimed injuries are not redressable by this Court because, regardless of SB 670, the state court injunction in Hillman prohibits DFG from issuing any new suction dredge permits under its existing regulations.

3). Even without the Eleventh Amendment and jurisdictional bars, the Court must abstain pursuant to Younger v. Harris, 401 U.S. 37 (1971), due to the interference this action will cause to pending state proceedings in Hillman.

REPLY TO 1).

With regard to SB 670 statewide indefinite mining prohibitions, the state of California claims sovereign immunity under the 11th Amendment of the U.S. Constitution. The rule of state sovereign immunity is subject to an exception: where a suit seeks relief against a state agency for action contrary "to the supreme authority of the United States", it is not deemed a suit against the sovereign. Ex parte Young, 209 U.S. 123, 28 S.Ct. 441, 52 L.Ed. 714 (1908).

The California Statehood Admission Act (Sec. 3) expressly provides; “…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…”.

In that California would not exist as a State, nor would its Constitution, except as provided by the Federal Enabling Act. It stands to reason that the Federal conditions imposed by the Act supersede any 11th amendment claim of sovereign immunity the state of California can assert in Federal court. Especially so when it openly defies the superior sovereign’s mandate that is shall never impair or question the right of the Federal government to dispose of applicable valuable minerals within Federal lands in California

The Stripping Doctrine: A state officer who acts in violation of federal law (either constitution or statute) is "stripped" of their official status and may not claim the state's sovereign immunity. Although "official capacity" suits are actually against the state, the stripping doctrine is engaged to allow enforcement of the federal supremacy clause. Federal courts may allow actions against state officers because foreclosure of such actions would ensure that no method existed of allowing enforcement of federal laws against the states. The principle is that state statutory law, in order to be valid, must be in conformity with U.S. Constitutional requirements.

A suit for money damages may be prosecuted against a state officer in his individual capacity for unconstitutional or wrongful conduct fairly attributable to the officer himself, so long as the relief is sought not from the state treasury but from the officer personally. Scheuer v. Rhodes, 416 U.S. 232, 237—238 (1974); Ford Motor Co. v. Department of Treasury of Ind., 323 U.S. 459, 462 (1945).

REPLY TO 2).

True, the state court injunction in Hillman prohibits DFG from issuing any new suction dredge permits under its existing regulations. Attorneys for the state ignore that SB 670 cancelled over 3000 valid pre existing suction dredge permits.

(FROM DFG ITSELF)The Department of Fish and Game (DFG) is prohibited by court order (Leeon Hillman et al. v. California Dept. of Fish and Game, Super. Ct. Alameda County, Case No. RG09-43444 (order issued July 9, 2009) from expending any funds from the State of California General Fund to issue suction dredge permits pursuant to Fish and Game Code section 5653, and related regulations found in sections 228 and 228.5 of Title 14 of the California Code of Regulations. DFG has ceased issuing suction dredge permits in compliance with the Court order. The order will remain in effect as long as the Hillman lawsuit is pending or until further order of the Court. However, current permits issued prior to the order remain in effect.

PLP's suit was brought before those permits expired.

Moreover, the Hillman injunction covers only the Klamath, Salmon & Scott river drainages. To enforce the courts order, the judge blundered, in that the injuction should have covered only permits for the Klamath, Salmon & Scott river drainages.

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 state of California cannot arbitrarily “take” that “vested” property right from permit holders it cancelled, without paying compensation.

REPLY TO 3).

PLP’s federal suit cannot cause interference in the Hillman action, in that SB 670 prohibitions make the Hillman suit moot. Secondly, the issues differ in that the Hillman injunction prohibits the expenditure of funds, from the state general fund to issue suction dredge permits. SB 607 prohibitions are enforced by statutory implementation making the issuance of suction dredge permits unlawful under any circumstance until such time as various contingencies of SB 670 are met. Some of which may never occur.

_______________________

FURTHERMORE:

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(c )(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.

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

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).

State laws that impose reasonable requirements upon the use of federal lands are permissible when directed at environmental concerns; however, the state may not deny the federal use. See, Id "The federal Government has authorized a specific use of federal lands, and [the state] cannot prohibit that use, either temporarily or permanently, in an attempt to substitute its judgment for that of Congress."

Absent consent or cession a State undoubtedly retains jurisdiction over federal lands within its territory, but Congress equally surely retains the power to enact legislation respecting those lands pursuant to the Property Clause. And when Congress so acts, the federal legislation necessarily overrides conflicting state laws under the Supremacy Clause. California Coastal Comm 'n v. Granite Rock, 480 U.S. 572, 581, 107 S. Ct 1419,94 L.Ed.2d 577 (1987).

The Property Clause of the U.S. Constitution states that "Congress shall have Power to dispose of and make all needful Rules and Regulations respecting the Territory or other Property belonging to the United States." U.S. Const., Art. IV, § 3, cl. 2.

The Property Clause gives Congress plenary power to legislate the use of federal lands. Carden v. Kelly, 175 F.Supp.2d 1318, 1323 (2001).

The Property Clause is a grant of power over federal property. Kleppe v. New Mexico, 426 U.S. 529, 537-538, 96 S.Ct. 2285 (1976).

The States may enforce their criminal and civil laws on federal lands, but if the state laws conflict with valid legislation that has been passed pursuant to the Property Clause'" the state law must recede." Carden, 175F .Supp.2d at 1323.

The Property Clause empowers Congress to exercise jurisdiction over federal land if Congress chooses. Wyoming v. United States, 279 F.3d 1214, 1226 (2002). State jurisdiction over federal land does not extend to any action that is inconsistent with the full power of the United States to protect its lands, to control their use, and to prescribe in what manner others may acquire rights in federal land. Id. (emphasis added).

Under the Supremacy Clause, when Congress enacts federal legislation, the policies and objectives of that legislation override any state laws, policies, or objectives that conflict with it. Id.

Otherwise, the public domain of the U.S. would be at the mercy of the states. Kleppe, 426 U.S. at 543.

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

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OGM, about 4 years ago, I would have agreed with this. I just cant anymore. I now have a wait and see attitude, because of this administrations raping of our Rights and Liberties. They are cicumventing the Constitution on many fronts. Also, this issue is not in the forefront of American Media. Its really not getting the press it needs or the exposure it deserves. You have my highest respect for all the work you have done. I sincerely hope it is in a winning effort.

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Hey old gold miner, I really have to say I admire your ability to cut and paste a whole lotta legal opinion mumbo-jumbo (on nearly a daily basis), but if you really think this decision will be based on the law - or even common sense, then I disagree.

Gold miners don’t have a ghost’s chance in hell of winning this lawsuit, or getting our permits back – period. We are looking at years of public and private lobbying and millions of dollars to battle the green tide washing over California. We need a strong legal lobby, but we need a stronger political and public presence or we’ll all be building model airplanes in our basement instead of enjoying our public lands. That’s my opinion. - Terry

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if you really think this decision will be based on the law - or even common sense, then I disagree.

I dont agree with all of Tery's comments, but agree with the one above. In a day when the highest courts in the land say the constitution specifically guarentees free abortions to all females, that all illegal aliens have the right to free health care, and foreign terrorists who have declared war upon us have the same rights to a free public trial as a US citizen, then you have to know that all written laws mean nothing. The courts decide what they mean based on what they think they should mean, or what they would like them to mean - no matter what the wording of any law actually says.

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I dont agree with all of Tery's comments, but agree with the one above. In a day when the highest courts in the land say the constitution specifically guarentees free abortions to all females, that all illegal aliens have the right to free health care, and foreign terrorists who have declared war upon us have the same rights to a free public trial as a US citizen, then you have to know that all written laws mean nothing. The courts decide what they mean based on what they think they should mean, or what they would like them to mean - no matter what the wording of any law actually says.

You know....not to beat a dead horse....ok lets beat it anyway....I think this thread is really proving how much the Political arena affects and surrounds even a small society such as Prospecting/Mining.

No Bill this isnt a jab, but it is an observation. Perhaps it would have been better to assign a monitor (such as you have done with other sections), than to have done away with it. The Politics of today affects us in so many ways.

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Hey old gold miner, I really have to say I admire your ability to cut and paste a whole lotta legal opinion mumbo-jumbo (on nearly a daily basis), but if you really think this decision will be based on the law - or even common sense, then I disagree.

Gold miners don’t have a ghost’s chance in hell of winning this lawsuit, or getting our permits back – period. We are looking at years of public and private lobbying and millions of dollars to battle the green tide washing over California. We need a strong legal lobby, but we need a stronger political and public presence or we’ll all be building model airplanes in our basement instead of enjoying our public lands. That’s my opinion. - Terry

Terry, do you own a valid mining unpatented claim?

If you do, you have inalienable private property rights in it.

The day a state government can take them, without paying compensation.

Is the same day a state government can take your gold pan, metal detector, model airplanes, guns, car & home away from you.

Without you being able to do anything about it.

The Law, is the Law.

State law cannot take away what Federal law provides & guarantees

Otherwise, protections governing Liberty & Private property in the U.S. Constitution means nothing.

Because local mining districts can still be formed, by miners.

I would think you will see a rebirth in them.

In that they would be a perfect political vehicle to strengthen our lobby.

That takes time, effort & work.

But, unless miners do something like that, our cause is lost.

SB 670 should unite miners, to protect their rights.

SB 670 may be the catalyst to do just that, on a state & national level

I would hope, the decision of the Federal Court here, will surprise you.

In that it will strengthen your property rights, rather than deprive you of them.

LOL, cutting & pasting the governing law here is easy.

The tough part is finding it, to do so

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Here is a link to information about the Clean Water Restoration Act.

http://www.opencongress.org/bill/111-s787/show

This Act is yet another indication that our rights are being taken away, by the circumvention of our Constitutional rights. This act has very far reaching implications and will work against dredging, not only in California, but other states as well.

This Act, gives the Government the right to regulate the water on Private Land. This is also another reason why the fight against SB 670 is a political one and one that I do not think is being won, no matter how Constitutionally right everyone thinks they are. In the end, the only way we are going to be able to stop these losses of our freedoms, will not be in court, but in the Political arena and that starts next year.

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Old Gold Miner, I am not telling you that you are wrong. I am telling you that in my opinion, you should be directing all of your hard work and valuable time towards the print and electronic press (i.e. local reporters), and to your local politicians and political appointees.

Ranting to the choir here about how we are getting raped is not only pointless, it’s useless. :grr01: Gold miners already know the legal reasoning and rationalization behind what is happening to our rights is flawed – the point is moot. Go Tell The Spartans! :twocents: - Terry

Terry, do you own a valid mining unpatented claim?

If you do, you have inalienable private property rights in it.

The day a state government can take them, without paying compensation.

Is the same day a state government can take your gold pan, metal detector, model airplanes, guns, car & home away from you.

Without you being able to do anything about it.

The Law, is the Law.

State law cannot take away what Federal law provides & guarantees

Otherwise, protections governing Liberty & Private property in the U.S. Constitution means nothing.

Because local mining districts can still be formed, by miners.

I would think you will see a rebirth in them.

In that they would be a perfect political vehicle to strengthen our lobby.

That takes time, effort & work.

But, unless miners do something like that, our cause is lost.

SB 670 should unite miners, to protect their rights.

SB 670 may be the catalyst to do just that, on a state & national level

I would hope, the decision of the Federal Court here, will surprise you.

In that it will strengthen your property rights, rather than deprive you of them.

LOL, cutting & pasting the governing law here is easy.

The tough part is finding it, to do so

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Terry,

My posts are not meant to be “RANTS”

The purpose is to be both informative & constructive.

So, those involved KNOW the law & regulations.

What I have come to find out, is many many prospectors, miners, etc understand basic concepts of the mining laws, and associated property rights.

But, at the same time many make critical & sometimes fatal mistakes regarding the same.

For instance, about 40% of the BLM filed mining claim location notices & maps I have reviewed contain critical errors, most of which are correctable.

About 25% contain FATAL flaws that are not correctable, if another party intervenes.

The end result IMHO being, 25% of the mining claims out there are not valid, by fatally defective location notices mistakes alone.

Sadly, at the same time, the owner “thinks” his mining claim is valid.

Then is stupefied, when he finds out it is not.

I have applied for & received fee simple patents over mining claims, before the patent moratorium took effect.

I have been through more mining claim “validity” contest determinations than I have fingers.

I won every one, because I knew the rules, Reg’s & law governing those issues beforehand.

A lesson learned there is, don’t enter a USFS mining claim validity contest, you cannot win.

Otherwise, you will spend a lot of time, effort & money, FOR NOTHING.

Sadly many prospectors/miners get bulldozed in validity contests, simply because often they ‘think“ they are in good order & are not.

It takes INFORMATION to learn how to 1) know if you have rights & 2) how to protect them, if you do.

If you are unaware, no “private property” right or any protection accrues or vests to any person owning an unpatented mining claim, if the mining claim is NOT supported by a “Valid Mineral Discovery”.

So, anyone owning an unpatented mining claim should be prepared to withstand a “Validity Contest Determination” to determine if the mining claim is supported by a “Valid Mineral Discovery“.

Otherwise, they hold nothing more than a "Pedis Possessio" right. Which means "standing on it", nothing much more.

No order for payment will ever be made in the Court of Federal Claims, for any alleged “taking” of a private property right regarding an unpatented a mining claim.

If that mining claim that is not proven to be “valid” first.

Opposing attorneys will throw that one in the Courts lap, every time.

My SB 670 CEQA comments were 40 pages long.

If only one sentence, in one paragraph, on one single page of those comments HELPS.

Doing so was constructive & worthwhile.

My posts here are probably several hundred pages long.

If one sentence on one of those pages HELP one person, they were worthwhile. ............. :olddude:

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Guest bedrock bob

"Terry, do you own a valid mining unpatented claim?

If you do, you have inalienable private property rights in it.

The day a state government can take them, without paying compensation.

Is the same day a state government can take your gold pan, metal detector, model airplanes, guns, car & home away from you.

Without you being able to do anything about it."

In my humble opinion THIS is where your logic is flawed. No one has taken ANY property rights away! Just the PRIVELIDGE to dredge. They arent affecting claim ownership at all are they? Only the SPECIFIC ACTIVITY OF DREDGING, which is NOT a right!

No one has lost claims have they? 99% of your rant is on the "private property" aspect of a claim and as far as I can see, nothing has been infringed upon in that area. Just the moratorium on dredging. This would be a whle lot like a City passing an ordinance saying that there would be no watering the yard on Thursdays or that you cant own horses in a subdivision. NO PROPERTY RIGHTS HAVE BEEN INFRINGED. But you stil cant have a horse. It might make your lot worth more, or be the difference between apreciation or depereciation. It does not matter.

And as far as "laws" and the "constitution" being there for our protection I hate to tell you that it is not. Laws are there to keep us under control and the contitution has been crapped on so many times it is relatively meaningless today.

Money and numbers are the only driving factor in politics. Without the money and/or the numbers any cause is not worth two shits no matter what the constitution says. The only way miners are going to get on the inside track with money and numbers is to organize with other land users and sportsmen and fight together. An allied front.

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Guest bedrock bob

And where are the big mining companies that we are so vehemently supporting and support us? When I suggested that prospectors are bearing the burden for the sins of the big mining companies, and that prospecting was to mining as a deer unter was to the slaughter of the buffalo, everyone jumped sky high!

Hey, if a small miner and prospector did not ally themselves with big mining we would be viewed in a completely different light. We insist on being allied with huge mining interests even though we share nothing in common with them and so we are destined to fight the well funded and politically connected environmental causes. If we woudl spend a very few bucks and some valuable time positioning ourselves as pure recreationalists our fight would be much different. Instead of mining properties being thought of by some as an opportunity for miners to take advantage of the people, a mining property would become a playground that should be protected and preserved for the hobby.

Each time that any legislation is proposed that affects the big companies they are our closest buddies. But if a small miner has a few very good claims the big companies are the first to scalp him alive. When legislation is passed that does nt involve big operations, the large companies are silent...Why waste resopurces that are needed to insure profits?

WE ARE RECREATIONALISTS, EVEN IF WE HAVE A SOLE PROPRIETORSHIP AND MANAGE TO SCRATCH A LIVING FROM MINING.

We are in bed with a vampire when we ally ourselves with huge mining interests, and are treated like them by the environmentalists. The only way to win is to distance ourselves from this and let the well funded corporations fend for themselves. Public land should be there for the public...Instead it is MOSTLY there for big corporations to hold until the economic/political environment is ripe. Many small miners could be reaping a meager profit from this public land, but we are kissing them on the mouth for poking us in the behind!

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Bob, calm down......

Your right of course, but your getting yourself excercised and thats not good for your health. There is almost no respect for out Constitutional rights and our Government is finding ways around it, to take away our Private Holdings.

Bob you say no one has had any private property rights taken away....but thats not exactly true. Eminent Domain abuses have been in the news, even as recently as last month. Our Government is now trying to pass the Clean Water Restoration Act, which will give them lordship over ALL water in America.

So if you own a piece of property that has a River or creek running through it and you are a small time dredger on YOUR Property, they will be able to come in and regulate what you are doing. Piece by Piece, we are losing everything that Prospectors hold dearly. The right to mine/prospect, the right to mine/prospect on your own land and the right to mine/prospect on "Public" lands. One small piece at a time.

Your right of course about the big mining operations, but I am sure we do not know what they are doing behind the scenes. Perhaps they are just waiting for the right time to sell to China.

I will venture one prediction...IF by the grace of God the Cali dredgers are able to dredge again.....permits will be priced so high, it will cut the small man out.

With no land rights, it will be very hard to plant nickels......and I am sure the EPA would render your holes toxic.

http://www.nuggetshooter.ipbhost.com/index.php?showuser=21993

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Just role out your carpet , Bow five times a day to the East and all will be well.

There is NO Constitution!

There is No Concern for the people that use to make money in this country!

Just Bankers, and the Tax man!

You Own NOTHING!

You Make NOTHING!

You Can't even erect a OUT HOUSE with out there permission.

So they Stopped you from Dredging!

Don't Dreg!

Just Hire a bunch of chines to do it for you!

One Pan at a time.

That would fly.

They could form a UNION and file restraints on the Government claiming Prejudice.

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Guest bedrock bob

Bob, calm down......

Your right of course, but your getting yourself excercised and thats not good for your health. There is almost no respect for out Constitutional rights and our Government is finding ways around it, to take away our Private Holdings.

Bob you say no one has had any private property rights taken away....but thats not exactly true. Eminent Domain abuses have been in the news, even as recently as last month. Our Government is now trying to pass the Clean Water Restoration Act, which will give them lordship over ALL water in America.

So if you own a piece of property that has a River or creek running through it and you are a small time dredger on YOUR Property, they will be able to come in and regulate what you are doing. Piece by Piece, we are losing everything that Prospectors hold dearly. The right to mine/prospect, the right to mine/prospect on your own land and the right to mine/prospect on "Public" lands. One small piece at a time.

Your right of course about the big mining operations, but I am sure we do not know what they are doing behind the scenes. Perhaps they are just waiting for the right time to sell to China.

I will venture one prediction...IF by the grace of God the Cali dredgers are able to dredge again.....permits will be priced so high, it will cut the small man out.

With no land rights, it will be very hard to plant nickels......and I am sure the EPA would render your holes toxic.

http://www.nuggetshooter.ipbhost.com/index.php?showuser=21993

I meant no private property rights have ben taken away by the DREDGE BAN...Specifically. The argument that public mining claims are "private property" is only true in a certain sense. No one has infringed on those specific rights. They have just put a moratorium on dredging. OGM used "driving your car" as an example and it is a good one. Try driving drunk and see how yuor "rights" to drive go, or try driving on the sidewalk. Try driving on a closed road...just because they allow you to drive and are not taking your car, does not mean that you can drive anyhwere you want to. Heck, try growing pot at your house and see how well your "property rights" are upheld. Simply water your lawn on the wrong day in Albuquerque and you will find out quick about exactly how much that private property means. Mineral claimants still hold mineral rights...they just cant dredge. SO my point is that property rights have not been violated any more than they would be if your POO is denied to mine placer, or if there was a moratorium on hard rock mining, or leach piles. There is and has been in areas, and they have never prevailed legally. Dont know how this one is any different.

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I meant no private property rights have ben taken away by the DREDGE BAN...Specifically. The argument that public mining claims are "private property" is only true in a certain sense. No one has infringed on those specific rights. They have just put a moratorium on dredging. OGM used "driving your car" as an example and it is a good one. Try driving drunk and see how yuor "rights" to drive go, or try driving on the sidewalk. Try driving on a closed road...just because they allow you to drive and are not taking your car, does not mean that you can drive anyhwere you want to. Heck, try growing pot at your house and see how well your "property rights" are upheld. Simply water your lawn on the wrong day in Albuquerque and you will find out quick about exactly how much that private property means. Mineral claimants still hold mineral rights...they just cant dredge. SO my point is that property rights have not been violated any more than they would be if your POO is denied to mine placer, or if there was a moratorium on hard rock mining, or leach piles. There is and has been in areas, and they have never prevailed legally. Dont know how this one is any different.

Gotcha.....see how much calmer you are now? Doesnt that feel better? :ROFL

http://www.nuggetshooter.ipbhost.com/index.php?showuser=21993

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Extracting minerals from a valid mining claim or a valid patent is a right guaranteed by LAW. When the state takes away your ability to extract those minerals they are in violation of your property rights.

You might be a ecreational prospector, but my income with making gold nugget jewelry far removes me from being a recreational miner.

fishing is recreational... mining is certainly not

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Bob,

In most cases, suction dredging is not a privilege. It is a perfectly lawful private property right.

Please allow me to explain why.

In most cases, the only place profitable placer gold remains is in stream & river bottoms.

Because the old timers did not have the technology to extract it.

Say for instance you have a placer claim in a canyon.

The only place gold bearing gravel exists is in the stream or river bottom.

The only viable means to mine it is by suction dredging, period.

Take that right away, you have taken ALL beneficial use of the property, from the owner.

Another example, say you owned oil rights on unbuildable land & discovered oil there.

The only way to extract the oil was by drilling oil wells.

Take the right away to use oil well drills, takes all beneficial use from the owner, period.

Another example, say you owned unbuildable land & developed rock quarry site.

The only way to extract the rock, is to drill & blast it.

Take the right to drill & blast that rock, takes all beneficial use from the owner.

Say you had unbuildable land, spent big bucks & turned it into a vineyard.

The only have to profit is to harvest the grapes.

Take that right away, you take everything the vineyard owner owns.

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HPS, not mad at you or anyone here. Just tired of people thinking that anyone that runs a dredge is a recreational prospector. That term needs to go out the window, unless of course you just bought a bounty hunter beeper and a gold pan and are off to a fun weekend. We are at the least small scale gold miners. HPS So sorry if your skin is so thin that you think what I say is insulting.... I think recreational dredging is an insult to many!

Not trying to lord over anyone.... sorry if I take all this so personally, but I owe a large part of my success in life to the past 30 years of dredging! While I may not personally dredge anymore, I want my grandson to be able to have the option to do so.

Fortunately, I have a pretty good stash of jewelry grade gold for my work, the supply of screened gold is certainly thinning out. I know a major gold dealer and he just sold all of his reserves of screened gold (70+ oz) to a large jewelry manufacturer. Much more than they normally get at once. He does not know if he will be able to get much more California stuff now.

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Guest bedrock bob

Well, if you really, really want to be a miner then O.K., but the point remains the same. Dredging and small scale operations have little or nothing in common with large scale mining. It is the difference between night and day, and wannabe "miners" are getting thrashed because they ally themselves with the big boys.

There are many more recreational "miners" out there than there are "real miners" anyhoo, and the public land should be open to them because they cause much less disturbance and damage. They should not bear the burden of the fight between large scale operations and the enviros. That is the point I was trying to make.

And why are you bashing recreational fishing when you should be looking at commercial fishing as the culprit? I see fishing as being a lot like mining. There are recreationalists, guides, and commercial fishermen too. It seems like the fishing industry is a great analogy for the mining industry dont you think?

Bob

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Guest bedrock bob

Bob,

In most cases, suction dredging is not a privilege. It is a perfectly lawful private property right.

Please allow me to explain why.

In most cases, the only place profitable placer gold remains is in stream & river bottoms.

Because the old timers did not have the technology to extract it.

Say for instance you have a placer claim in a canyon.

The only place gold bearing gravel exists is in the stream or river bottom.

The only viable means to mine it is by suction dredging, period.

Take that right away, you have taken ALL beneficial use of the property, from the owner.

Another example, say you owned oil rights on unbuildable land & discovered oil there.

The only way to extract the oil was by drilling oil wells.

Take the right away to use oil well drills, takes all beneficial use from the owner, period.

Another example, say you owned unbuildable land & developed rock quarry site.

The only way to extract the rock, is to drill & blast it.

Take the right to drill & blast that rock, takes all beneficial use from the owner.

Say you had unbuildable land, spent big bucks & turned it into a vineyard.

The only have to profit is to harvest the grapes.

Take that right away, you take everything the vineyard owner owns.

OGM... Surely that you are aware that ALL of your examples here happen every day. There is no guarantee that the laws will allow you to drill for oil, blast, or even build on a lot that you bought for development. And if a law is put into effect that takes away your profit then it is ususally not recoverable by suing the folks that made the law. They aer great analogies but they surely do not support your point. ROck quarries are shut down every day, subdivisions are stopped by regulations, and oilfields are regulated too...ANWAR comes to mind!

I did spend a pile on land, and put a 1/4 mil into curb and gutter, then another 1/2 mil into utility infrastructure, only to have the city and state tell me that they would not allow development because the water table was dropping so rapidly. There was no way to recoup that money. Your vineyard analogy reminds me of that one.

No guarantees man. No guarantees that you can build on private property, no guarantees that you can dredge on PUBLIC property.

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A valid unpatented mining claim is PRIVATE property. At least to the extent the owner can mine it.

What this thread demonstrates is a perfect example of why small scale miners have difficulty in forming a united front, to ward off challenges to their long standing legal property rights. It appears while well organized environmental entities & other groups lob cannon shots at the group of us. Individual small miners, or groups rather than forging a united defense, and firing back in any effective manner. Tends to argue about semantics of it all, while one after another get picked off by incoming cannon fire.

It is truly a sad day, when immigrant iterant laborers that harvest the crops most American eat. Can join together as a collective bargaining unit, to defend their right to make a decent living in this county. When, American small scale miners themselves. Who established California, and many other western states cannot do the same now. Even worse, those who at every possible moment, are eroding our rights know that, and use it against us.

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Guest bedrock bob

What this thread demonstrates is a perfect example of why small scale miners have difficulty in forming a united front...

YES! There has been several very good suggestions made and they have all been rejected patently by those that would like us to believe that they are "RUNNING THE SHOW". A perfect example of why folks that are not open to input cannot bring together a cohesive group!

I sure hope you guys get to dredge again, but unless you are willing to accept a compromise and work together with the folks involved I dont see any reason that the powers that be would even entertain your arguments, or other prospectors would support you. Just in this thread it has been suggested that sport fishermen in general are a threat to you. Hell, that is no way to garner suport for a cause is it?

So many adversaries and people to blame! So few acceptable colleagues to be associated with! With such a selective process it is no wonder that allies are few and far between! And then the puritain view of a public mining claim to boot. The only thing that you have is mineral rights and as long as they have not been infringed upon I see no loss has been incurred. Your only "private property" would be those mineral rights and they certainly have not taken those away with the dredge ban.

Bien Suerte OGM! I hope you win! My heart is with your cause and it pains me that you all are so closed to input. I believe that this is your greatest weakness!

Bob

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The distinction between "private property" rights and mere "privileges" is a fairly old one. In some cases the courts WILL HOLD as a matter of law that there has been a "taking" if the governmental intrusion can be shown to meet the standards for an implied condemnation. That, in turn, involves a question of fact. It is unclear to me at this early stage of litigation whether the PLP lawsuit ultimately will head in that direction. IMHO OGM is not uselessly preaching to the choir, rather he is throwing ideas out there and is drawing comments. This is good. It can be constructive to the extent that critical examination of the ideas being bantered leads to a better understanding of the problems involved and how to structure a legal argument [by all of us and maybe even the PLP attorney]. The volume of this discussion itself is testimony that feelings run high and so many different viewpoints are possible without degenerating into sticking our tongues out at each other. Of course, at the end of the day, the outcome will not be resolved on this forum.

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HPS, not mad at you or anyone here. Just tired of people thinking that anyone that runs a dredge is a recreational prospector. That term needs to go out the window, unless of course you just bought a bounty hunter beeper and a gold pan and are off to a fun weekend. We are at the least small scale gold miners. HPS So sorry if your skin is so thin that you think what I say is insulting.... I think recreational dredging is an insult to many!

Not trying to lord over anyone.... sorry if I take all this so personally, but I owe a large part of my success in life to the past 30 years of dredging! While I may not personally dredge anymore, I want my grandson to be able to have the option to do so.

Fortunately, I have a pretty good stash of jewelry grade gold for my work, the supply of screened gold is certainly thinning out. I know a major gold dealer and he just sold all of his reserves of screened gold (70+ oz) to a large jewelry manufacturer. Much more than they normally get at once. He does not know if he will be able to get much more California stuff now.

Understood, it just sounded a bit over the top old son. I like to think we are all in this together.

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Guest bedrock bob

No, I suppose there is no harm in discussing your views and having them dismissed and every response crafted to support how wrong they are. It would seem that in a forum where everyone shares prospecting as a hobby that it would be a lot easier to gain some support huh? And I believe that 100% of forum members would be in support if the criteria for acceptance was not so darn narrow. It is like aplying for a Government job...Very few people have the qualifications it takes to get their foot in the door!

If a fellow does not share each and every aspect of a philosophy then they are somehow the enemy...Or at least some sort of ignorant buffoon. They are the enemy if they fish, if they dont feel that a claim is "private property", if they feel that the argument at hand is a bit myopic, or if they have anything to interject that may be disagreeable to a certain few. Oh yes, and if you do not consider a summer dredger to be a "miner" then you can take your opinion and go down the road with it too.

You guys should find a platform that supports your cause and does not exclude people. And listen to suggestions rather than use the suggestions to demean others and push them away. My feeling is that you need all the help that you can get and then some. Shooting yourself in the feet is not a great strategy when you are in a battle, and I beleive that you fellows are in a battle for your very existence, or so it seems.

If I was in a battle where I was severely outnumbered, outgunned, and out financed I would try to draw as many around me as I could, regardless of their differences. The only thing that should matter in this fight is if you support miners and prospectors and oppose the dredging ban. WHether you fish, how you feel about public domain, etc.etc. should not be a factor.

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