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New Siskiyou County Development In Dredge Litigation Proceedings


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Today the New 49ers are filing an action for injunctive relief in the Siskiyou County Superior Court. They are doing so because many of their members are being harassed by F&W agents with threats of prosecution and seizures of equipment. The legal crux of the matter is that the statewide coordinating judge (Hon. Gilbert Ochoa) in San Bernardino County issued a ruling last January that the California statutory dredging scheme is unconstitutional. However, this same judge has yet to issue any relief (i.e., an injunction or other order that expressly prohibits F&W or its agents from interfering with the activities of suction dredge operators). Thus, the New 49ers are seeking such immediate equitable relief from the Siskiyou County Superior Court on behalf of all of its members in the form of an ex parte restraining order. The State, however, appears to be contending that only the coordinating judge (Ochoa) has jurisdiction to issue such an order. A ruling may emerge within a week or two. Stay tuned!

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Question, Micro:

Are you sure that filing is about using a dredge with attached sluice..?

Last I knew Dave & the folks at Happy Camp had come up with a couple innovative work-arounds, one of which involves using a dredge to pull material onto dry land for processing.. I have to wonder if they could be being pestered due to one of these methods..

I just can't see those folks trying to get back into the water prematurely following this hard-fought battle and with sooo much still on the line..

Merely looking for clarification,

SA

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Question, Micro:

Are you sure that filing is about using a dredge with attached sluice..?

Last I knew Dave & the folks at Happy Camp had come up with a couple innovative work-arounds, one of which involves using a dredge to pull material onto dry land for processing.. I have to wonder if they could be being pestered due to one of these methods..

I just can't see those folks trying to get back into the water prematurely following this hard-fought battle and with sooo much still on the line..

Merely looking for clarification,

SA

Al,

Yes it's a restraining order for a normal dredge, not the "work around method", here's the email sent out today by Dave Mack.

"Here is some news to bring you guys up to date on what has turned

into a fast-moving series of events along the Klamath River in

Northern California:

Suction dredgers have been arriving by the day to start the season.

California wardens have harassed some of them, insisting upon

enforcing California's moratorium on suction dredging -- which

has been struck down as illegal and unenforceable by the San

Bernardino Court. The wardens are refusing to take any dredger

into Siskiyou County Court for an immediate hearing on the matter.

Therefore, James Buchal has drafted a civil lawsuit to be filed

in Siskiyou County on behalf of several dredgers who have been

harassed by the wardens. The lawsuit only asks the judge to issue

an Order restraining the wardens from enforcing the unlawful moratorium.

Requests for Restraining Orders are only heard in Siskiyou county

on Thursdays. So if all goes well, we could have our day in court

next Thursday, 7 May.

In turn, the State has filed an objection with the San Bernardino

Court on the grounds that these suction dredgers cannot file a

lawsuit in Siskiyou County, because all dredging-related cases

have been coordinated in San Bernardino. Therefore, there will

be a hearing tomorrow (30 April) in San Bernardino to determine

if these dredgers can file for relief in Siskiyou County where

the conflict is taking place."

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This is the absolute worst thing that could EVER be done at this point in time. The Rinehart case has filed his arguments in the SUPREME COURT, Judge Ochoa has alrea ruled on federal premption and waiting on the Rinehart decision by the Supreme Court,to rule on the 7 cases and issue regs and final ruling on the 7 cases. NOW this insanity completely muddies the waters and throws dirt on 7 years of pain,agony and suffering. Here kiddies come drink the nice cold kool aid and take a nice dirtnap-ADIOS DREDGING sic sic sic bs as all the lawyer and court costs flushed .....John

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Subsequent to the beginning of this thread, Judge Ochoa now has clarified that it is he who will decide the issue of injunctive relief, as opposed to any other California Superior Court. In other words, these civil actions remain consolidated. Attorney James Buchal has done an excellent job in articulating preliminary non-triable issues of fact (the actual seizure by F&W of mining equipment, the intimidating threats of arrest, the arrival of F&W agents in force under color of state law to enforce a law that has already been declared unconstitutional, etc., etc.). This is the type of indisputable factual basis required for a showing of the likelihood of irreparable harm -- one of the legally required elements that must be alleged and demonstrated before a restraining order may be issued. Bottom line: the legal stage now has been set for a definitive ruling PLUS a corresponding judicial order. This can be of significance down the legal stream, i.e., if there are attempts by the state or others to appeal the issuance of a restraining order, then the burden shifts to those parties to demonstrate irreparable harm -- a legal task that will require the support of something akin to a non-triable issue of fact. That will be a very, very tall order indeed in light of the completely unscientific and bogus "study" conducted by the hoopla head bureaucrats in Disneyland North. So, personally, I rejoice at these developments for the reasons I have already stated. :ya:

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2 already lost equipment and ticketed-2 hauled off to JAIL and lost it all-YAAAAAAAAA-keep on a listening and drinking that poison koolaid-John

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Is this a case of impatience or impudence..?

Doesn't matter, really -- either way it's wrongheaded at best..


This is exactly what PLP et al following the initial ruling requested we NOT do, not allow to happen..

So why is it happening; why has it happened..?

Unfortunately I believe I know at least parts the answer..

And I think most of you do too..


Not cool; not cool at all..!


SA

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Martin,

Per a news letter from the New 49ers written by Dave McCracken the latest info is:

Judge Ochoa will not hear or rule on the case for injunctive relief until June 23..... So the status of the dredgers remains in limbo legally or so it seems.....

According to the newsletter the two dredgers arrested waived their right to a 48 hour hearing and signed a promise to appear in June.... Had they insisted on a hearing within 48 hours the issue would have been brought before a judge quickly and perhaps provided some relief for the embattled dredgers....

So I guess the standoff continues and some dredgers are in the water doing what they do best in spite of the ongoing threat of arrest or harassment from authorities.... Just passing on what I thought was an interesting development....

Good Luck to the dredgers!

Jeff

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