Jump to content
Nugget Shooter Forums

May 1st Dredge Case Summary


Recommended Posts

This morning in Rancho Cucamonga Judge Gilbert Ochoa heard oral arguments before a packed courtroom regarding various motions and cross-motions for summary judgment. I will try to capsulate the proceedings and my impressions the best I can. First, the concept of a motion for summary judgment (MSJ): this is a legal procedure for obtaining a judgment as to some or all issues without the necessity of taking additional "disputed" evidence (i.e., without a trial). Sometimes the parties can stipulate (or agree) upon a set of undisputed facts. Sometimes undisputed facts can be inferred from an undeniable record (such as actions taken by a legislature). In the instant case the main issues turn mostly on questions of law. The core issues have to do with whether or not a state can prohibit the exercise of a federal mining right and, if so, to what extent.

A new player by the name of Melnick (sp?) from the California Attorney General's Office emerged to argue most of the case for the Department of Fish and Wildlife. In all of the previous proceedings a Deputy Attorney General by the name of Solomon made the oral presentations. Mr. Melnick was asked some pointed questions by Judge Ochoa. One of the best moments was when he was trying to explain that the state of California has not prohibited suction dredging -- that it merely has placed a moratorium on dredging. Well, that caused roughly 150 miners simultaneously to just about spit up. I thought the court clerk was going to faint. Judge Ochoa quickly restored order, but the soft underbelly of the state's case could not have been better underscored by any of our own attorneys. Thank you Mr. Melnick!

The state's legal argument rests upon a construction of a U.S. Supreme Court opinion (Granite Rock) that the Mining Law of 1872 says nothing about environmental issues, therefore a state can regulate the environment by regulating mining without being preempted by federal mining laws.

The PLP legal position is that Granite Rock does not permit an absolute prohibition. That is when Judge Ochoa pressed the state to explain how the so-called moratorium is not actually a prohibition. "Mr. Melnick, can you give me a date when this moratorium will end?" Answer: "No, your Honor". "Can you tell me when the CEQA mitigations will be completed?" "No, your Honor". "Is it feasible to state what the cost of a permit will be?" "I don't know when that (analysis) will be completed." The court rendered a few other comments such as "Doesn't Granite Rock envision a bright line -- not a moratorium? Five years is a long time!"

In regard to the New 49ers Second Cause of Action Mr. Melnick argued that the state has the benefit of a presumption that they acted correctly. Mr. James Buchal, the New 49ers attorney, forcefully pointed out that the word "presumption" does not appear anywhere in any of the cases because we are dealing with a federal law. (Note that California Evidence Code section 664 (a state law) establishes a presumption that official duty has been "regularly performed" -- there is no comparable federal rule of evidence). Mr. Buchal argued that some things can be struck down by a court -- such as a dredging moratorium. He emphasized that the California Legislature amended the 2016 original moratorium end date out of existence, i.e., that under current legislation THERE IS NO SUNSET PROVISION! He summed up the New 49ers position as, "The state says we must have a permit, but it also says we aren't going to give you one!! In other words, that the court should strike down this act by the Legislature independent of any other part of the cases pending before it. If, of course, such an injunction is issued we will be seeing a lot of folks trying to squeeze into once well fitting wet suits.

But we will have to wait. Judge Ochoa stated that it would be at least two more weeks before he issues his final decision on the summary judgment motions. But my instinct strongly left the courtroom in high spirits. Let's keep our fingers crossed and get ready to buckle on some weights!

Link to comment
Share on other sites

Thanks Martin. When I was searching to find the results of this court I found that the CDFW was pushing through its definition hearings. Can you read that and give a comment?

Mitchel

Link to comment
Share on other sites

Sounds to me like just another procedural screw up by CDFW. Comparable to BLM blowing the Federal Register notice requirement regarding higher placer claim fees a couple of years ago. This redefinition action was commented upon during the hearing earlier in the day. Mr. Buchal pointed out that when the state changed the definition of dredging to include all motorized mining it showed that the state was really out to stifle mining. Mr. Young (the PLP attorney) accused the state of California (in establishing an annual limit of 1500 permits) of setting up a system such that miners can't mine instead of a system in which they can mine. This is an important point because it identifies bad motive, or malice on the part of the state in direct contravention to a federal mandate. A state can not intentionally discriminate against a group of citizens who merely are seeking to protect (and be protected by) a federal right. By designing a California administrative nightmare to frustrate mining, instead of the Congressional objective of fostering the development of mining, it might be argued that the state is attempting to defeat a federal policy that underlies the Mining Law of 1872. So, in short Mitchel, this procedural step you referenced that CDFW has taken regarding the definition does not appear to be something that you should be distracted by. If Judge Ochoa grants the miners some equitable relief, CDFW will be in no position to defy it by a mere semantic sleight of hand.

Link to comment
Share on other sites

What of the later update about the parties having to appear for conversations toward compromise or whatnot (I can't recall the exact verbiage right now)?

Link to comment
Share on other sites

What of the later update about the parties having to appear for conversations toward compromise or whatnot (I can't recall the exact verbiage right now)?

Email message from the PLP

"On May 1, 2014, David Young, Counsel for Public Lands For The People and other plaintiffs, appeared before Judge Gilbert G. Ochoa in Rancho Cucamonga to argue our Motions for Summary Judgments, and oppose the State’s cross-motions for Summary Judgments. These Motions regarded the issue of Federal preemption of the State’s prohibition of suction dredge mining in California. Judge Ochoa was knowledgeable about the pleadings that had been filed, the arguments made, and asked challenging questions regarding the State’s position that there was only a temporary moratorium, and not a prohibition of suction dredge mining in California. The State could give no assurance to Judge Ochoa as to a date when the so called “moratorium” would end. At the end of all arguments, Judge Ochoa took the matters under advisement, making no ruling from the bench.

Judge Ochoa then asked all counsel to meet with him in chambers. He stated that he would like to see the matter settled, if at all possible, before he ruled on the various motions. We discussed the previous settlement attempts with judge Ochoa which were not successful. Nevertheless, Judge Ochoa exercised his judicial authority to order a Mandatory Settlement Conference (“MSC”) beginning June 24, 2014, which may continue for one or two more days. Judge Ochoa will personally preside at the MSC as the settlement Judge, and is prepared to make a substantial personal commitment of time and effort to see if any settlement can be achieved. Judge Ochoa will require all parties to the litigation to be either personally present in Court for the MSC, or to be available by telephone. Those parties who cannot attend personally, should be able to attend by telephone conference at no cost to them. Judge Ochoa has the authority to sanction any party who does not attend the MSC either in person, or by telephone.
When available, a copy of Judge Ochoa’s written Order regarding the MSC, and the mandatory attendance of all parties will be provided. Under any circumstances, Jerry Hobbs and David Young will be attending the MSC in person, and all other parties to the litigation are urged to attend in person. Judge Ochoa further stated that he would want to personally address the parties. The parties would have an opportunity, either through counsel, or personally to address Judge Ochoa. Since Judge Ochoa has yet to rule on the Motions now pending before him, the MSC should give everyone a more complete education on the realities of what it takes to actually engage in suction dredge mining in California, and the impact that the State’s prohibition has had on suction dredge miners."
Link to comment
Share on other sites

Not only the effect the "moritorium" has had on mining, but the effect it has had on

many busnesses that have closed due to the "moritorium".

The killing of an entire private industry. Will it come back? :89:

Fingers crossed here too. :fl:

(BTW, thanks for the info. :brows: )

Link to comment
Share on other sites

I would also assume it has caused a shift in ownership of properties and business in quite a few picturesque regions of the state spurred by the economic downturn triggered by a bureaucratic pirate's pen.

Link to comment
Share on other sites

I waited around with several others outside the courthouse to see what would come of the discussions in chambers. It seemed like an hour went by so I finally departed, not learning of the mandatory settlement order until a day or two later. For all the non-lawyers following this thread, here are my impressions: In complex cases it is not unusual at all for a judge to exercise his discretion to order a mandatory settlement conference in an effort to avoid a costly and lengthy trial. It is less usual (but by no means unheard of) for the trial judge to preside over the settlement conference. There is one factor that seems noteworthy to me. During the course of the public proceeding Judge Ochoa stated that a decision would be forthcoming, but no sooner than two weeks. Now, we find out that during the chambers portion a date of June 24th was designated for the MSC. This suggests that something transpired in chambers that caused a major shift. Not being privy what that "something" was, I will not hazard to speculate further. It sometimes happens that a judge will issue a "gag order" regarding certain things. June 24th still leaves July and August potentially open for miners to get back to our federal mining claims if a settlement can be quickly reached (or if some equitable relief is ordered in the absence of a prompt settlement). FRUSTRATING!!! :grr01:

Link to comment
Share on other sites

  • 1 month later...

Email message from the PLP

"On May 1, 2014, David Young, Counsel for Public Lands For The People and other plaintiffs, appeared before Judge Gilbert G. Ochoa in Rancho Cucamonga to argue our Motions for Summary Judgments, and oppose the State’s cross-motions for Summary Judgments. These Motions regarded the issue of Federal preemption of the State’s prohibition of suction dredge mining in California. Judge Ochoa was knowledgeable about the pleadings that had been filed, the arguments made, and asked challenging questions regarding the State’s position that there was only a temporary moratorium, and not a prohibition of suction dredge mining in California. The State could give no assurance to Judge Ochoa as to a date when the so called “moratorium” would end. At the end of all arguments, Judge Ochoa took the matters under advisement, making no ruling from the bench.

Judge Ochoa then asked all counsel to meet with him in chambers. He stated that he would like to see the matter settled, if at all possible, before he ruled on the various motions. We discussed the previous settlement attempts with judge Ochoa which were not successful. Nevertheless, Judge Ochoa exercised his judicial authority to order a Mandatory Settlement Conference (“MSC”) beginning June 24, 2014, which may continue for one or two more days. Judge Ochoa will personally preside at the MSC as the settlement Judge, and is prepared to make a substantial personal commitment of time and effort to see if any settlement can be achieved. Judge Ochoa will require all parties to the litigation to be either personally present in Court for the MSC, or to be available by telephone. Those parties who cannot attend personally, should be able to attend by telephone conference at no cost to them. Judge Ochoa has the authority to sanction any party who does not attend the MSC either in person, or by telephone.
When available, a copy of Judge Ochoa’s written Order regarding the MSC, and the mandatory attendance of all parties will be provided. Under any circumstances, Jerry Hobbs and David Young will be attending the MSC in person, and all other parties to the litigation are urged to attend in person. Judge Ochoa further stated that he would want to personally address the parties. The parties would have an opportunity, either through counsel, or personally to address Judge Ochoa. Since Judge Ochoa has yet to rule on the Motions now pending before him, the MSC should give everyone a more complete education on the realities of what it takes to actually engage in suction dredge mining in California, and the impact that the State’s prohibition has had on suction dredge miners."

June 24th is in 3 days. Anybody going to be there? I am crossing my fingers and my dredge is also!

Link to comment
Share on other sites

The effects of this ungodly illegal action will be felt forever-homes lost,100s a businesses closed,campgrounds bankrupt,marriages torn asunder and 3 suicides I know off,families split up.grandma/gpa starved out,put in old folks state slum homes,equipment rotting,mental and physical abuse for 5 years a pain agony and horrendous effects to communities---YAAA CDFG-ya can't hide behind a bright shiny new name as your still the MoFOGDSOBS ya always been-John

Link to comment
Share on other sites

I can't honestly say "Don't worry," but I can with confidence say, "Be happy." Even you, John -- just a little, teeny, weeny, tiny bit. :thumbsupanim The referenced Eighth Circuit South Dakota case is closely on point. The State of California in the Rinehart case has been doing essentially what the Eighth Circuit says a state can not do: You may regulate, but you can not prohibit! Note, however, that the South Dakota decision was published in 1998. That's why I still worry. Other cases have cropped up since then and MAY provide some basis for the state to hang its hat on. You just can never predict how a California (or any) court will exercise its interpretive authority. :idunno:

Link to comment
Share on other sites

Just spent some more time up at my old dredging claim on Nelson Creek...I sure do miss dredging and hope for the best. But today's government does not seen to give a rat's arse about laws........they just do as they please

Link to comment
Share on other sites

Just spent some more time up at my old dredging claim on Nelson Creek...I sure do miss dredging and hope for the best. But today's government does not seen to give a rat's arse about laws........they just do as they please

Sounds like you guys need to have a dredge-in. Chain yourselves to each other and your dredges and make it about a mile long. Seems to work for the tree huggers. :inocent:

Link to comment
Share on other sites

It went into the second day, and now it has been extended to Sept 4th & 5th, rules of the MSC still apply, in other words nothing has changed yet.

That's all the info I have gotten, I don't live on the west coast and get my info second hand from someone keeping up with what's going on in this case, I'll update as I get any info.

Link to comment
Share on other sites

A little more as to what transpired.

http://www.icmj.com/news-detail.php?id=247&keywords=California_suction_gold_dredge_settlement_hearings_concluded_for_now

"Miner's New

06/26/2014
California suction gold dredge settlement hearings concluded for now print.gif Print On June 24 & 25, 2014, plaintiffs, defendents and attorneys attended mandatory settlement hearings in San Bernardino, California.

Judge Gilbert Ochoa met with the involved parties individually and in small groups in his chambers in an attempt to reach an agreement over the suction gold dredge permitting process and the current regulations. These hearings were not open to the public.

The bottom line is that there was no agreement. Honestly, we didn't expect an agreement to be reached. The State of California and environmental extremists want dredgers out of the water, but miners are not about to give up their rights.

The next step is for Judge Ochoa to rule on the merits of the case -- at least that was supposed to be the next step. However, he has thrown another monkey wrench into the process. Judge Ochoa continued the hearing until September 4, 2014. He ordered the involved parties to go through the new dredging regulations established in 2012 and address each point individually, then present their negotiating points to the court.

We obviously have a problem with this approach, and you can rest assured the miners and their attorneys do also. The 2012 regulations were based on bogus science, and I use the term "science" loosely. They were designed to promote an ideology. With the help of environmental groups, the California Department of Fish & Wildlife inserted countless roadblocks into the 2012 regulations to keep dredgers out of the water. For example, they closed over 600 gold-bearing waterways to suction dredging, but claimed the closure was offset by the opening of waterways in other areas. The newly opened waters are at snow-level elevations with an operating season of September through January, and they are in areas that contain little or no gold. Nice try.

Other unworkable portions of the 2012 regulations include:
  • prohibiting dredging within three feet of any bank, which eliminates many smaller waterways and puts much of the gold out of reach on larger waterways
  • limiting dredge permits to 1,500 per season, which takes away the rights of thousands of dredgers
  • filling in all dredge holes, which nature does naturally -- often within one season
  • outlawing the use of winches without prior approval for each use, creating a dangerous work environment
  • limiting nozzle sizes to four inches, which makes production unprofitable in many situations
  • requiring 500' between dredges, which creates conflict between dredgers on adjoining claims
  • reporting finds by dredgers along with their locations, which would be an invitation to all crooks to come take your gold
  • limiting working hours from 10am-4pm, which could make dredging unprofitable
  • requring complete mitigation, which included things like noise and aesthetics that are impossible to achieve
We could go on for many more pages, but what is the point? The 2012 regulations were crafted to prevent dredging, not to reasonably regulate it. In our view, using the 2012 regulations instead of the 1994 regulations as a starting point is purely a delay tactic. Nothing in the 2012 regulations is negotiable -- it all needs to be tossed out. But why would the judge be delaying this case?

Following are a couple of interesting side notes that might provide the answer.

A related case involving Brandon Rinehart is before the Third Appellate Court. Rinehart is a suction gold dredger, and he operated with a permit up until the time that the State of California stopped issuing permits. Unable to obtain a permit, he continued dredging in protest. On June 16, 2012, he was cited for dredging without a permit on his own federal mining claim.

Rinehart pled guilty while retaining his right to appeal. He was fined $832 and given three years probation. Attorney James Buchal is handling the appeal. In his opening brief, Buchal explained, "...the central, pivotal issue is the question of whether federal mining laws preempt state laws prohibiting and regulating suction dredge mining..."

Buchal did an excellent job of laying out the facts and backing Rinehart's position with federal laws and established case law in the thirty-eight page opening brief and subsequent reply briefs.

The usual suspects -- the Karuk Tribe and the Center for Biological Diversity -- filed amicus curiae briefs in support of the State of California. The Pacific Legal Foundation and Western Mining Alliance joined, filing amicus curiae briefs in support of Rinehart.

This issue of federal preemption is scheduled for oral arguments on Monday, September 15, 2014.

If the Third Appellate Court rules in favor of Rinehart, Judge Ochoa would have to rule the same way. It may be that Judge Ochoa is simply delaying a ruling in San Bernardino until the Rinehart case is settled.

We also have to remember that Judge Ochoa is an elected official trying to walk a tightrope, with government officials and powerful environmentalists on one side, and miners supported by current laws and case law on the other. I don't pretend to know what Judge Ochoa's aspirations are, but I'm sure he is well aware that his career could be riding on how he handles this decision.

"

Link to comment
Share on other sites

Join the conversation

You can post now and register later. If you have an account, sign in now to post with your account.

Guest
Reply to this topic...

×   Pasted as rich text.   Paste as plain text instead

  Only 75 emoji are allowed.

×   Your link has been automatically embedded.   Display as a link instead

×   Your previous content has been restored.   Clear editor

×   You cannot paste images directly. Upload or insert images from URL.

  • Recently Browsing   0 members

    • No registered users viewing this page.
×
×
  • Create New...