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State response to Brandon Rhineart premption and the San Bernadion cases


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The legal significance of this development is that the Third Appellate District has jurisdiction to "publish" the outcome of this criminal case. Thus, a potential exists for a published case to emerge in California that will compel obedience by all lower courts. If the legal principles thus published are applicable, then a lower court decision (such as the San Bernardino court which has all the consolidated civil cases before it) will have to at least attempt to be consistent (or give good reasons why not). We California dredgers (at least some of us) will righteously rejoice at the new turn of legal dynamics that has come into play. Federal preemption, if determined to be the true guiding precedent, will be a powerful ally to those of us who hope soon to get back in the water. By my lights Mr. Buchal (Brandon Rinehart's lawyer) has made an excellent case for the supremacy of federal law (when balanced against the paltry environmental evidence and arguments marshaled by the state) to be a basis for overturning Mr. Rinehart's conviction. Let's keep our fingers crossed and maybe even donate some extra bucks to those who are actively fighting for our rights.

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Pacific Legal Foundation is the only hope . Then the regs have changed already so 99% closed 99% of the time,costs $1,000s for permits for a 7 days a year is NOT dredging. Fighting for right to not dredge is NOT more in accordance to reality. Simply go to CDFG website and see regs---THEN Water quality control link also and viola with 3 layers a law and no where to go wtf is the use...know when to hold'm and when to fold'm and when to walk away same as hydroblasting,draglines and big ol'righteous bucketline dredges. Reality based law foundations can NOT be ignored...that is unless your making cash off the deal like these scum sucking lawyers and pay to play sobs.Kalif is kaput as feds EPA-country wide-is now in the game with many 100s a new laws first a the year to protect water from the people sic sic sic as feds claim water belongs to them-John

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Hoser makes a point, but his point cuts both ways. Yeah, the feds may be engaged in ramping up regulations. Nothing new about that. But there is a subtle dynamic that MAY be new. Assuming a California Appellate Court acknowledges federal preemption, that opens a gateway for dredgers to get into federal court. Once that happens a state legislature may no longer find it so easy to backdoor dredgers with state legislation unless it can marshall substantial evidence (something it has not been able to do to date). Think positive. Ruminating over past defeats does us no good.

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All the more reason to win one or both of these cases, as it is my understanding everything reverts back to the 1994 regs. The new proposed regs, in itself, damm near outlaws a dredge to be put in almost every gold bearing waterway in the state, never mind the fees and a season so short that you could never make a thin dime, let alone break even.

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I have always held that the CA suction dredge ban is pre-empted by federal law. In this instance, if the States case can be overturned on that basis? Then, it will open the door to Federal court. Where that issue can be decided. Which is a good thing. My position is…….

“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." (See, US Const, Art IV, § 3, cl. 2 (the "Property Clause"). This provision, combined with the Supremacy Clause of the United States Constitution (Art 6, cl 2), gives the federal government extremely broad authority to preempt the application of state laws to federal property when those state laws conflict with a federal mandate.

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 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…”.

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).

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

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."

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”).)

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