August 2018: Reminder: Dredging does not add a pollutant

PLP Update as of 8-11-18:
Public Lands for the People delivered information to the Federal EPA in Washington DC in March that legally explained that suction dredgers do not “add” a pollutant within the meaning of the Federal Clean Water Act requiring a 402 or 404 pollution discharge permit. The EPA has assured us of a decision in the near future, as it was passed to their specialists on the matter.
As we know, whether it is California’s SB 637, or the CA Water Board, or Idaho’s IDWR, they all defer to the Federal EPA regarding exemptions when the Feds choose to specifically state such. The fact is, the States get funds from the Federal government to carry out these directives. PLP is continuing to follow this matter up and resolve it under the Trump administration so that suction dredgers will not be labeled polluters requiring discharge permits in CA or any other State. PLP strongly believes that by submitting to a 402 permit, as some have advocated (see the article below this newsletter: “Surrendering to the Pollution Permit”), miners will run the risk of undermining and subverting our negotiations with the Federal EPA to resolve this issue at a national level.
PLP also believes that when the true costs of the $6,000 permit plus the cost of hiring a water monitoring engineer per dredger (or group of dredgers), at $50,000 comes to light (which is now being hidden), dredgers will be rightfully outraged as this will not be affordable, nor reasonable. We can say this with relative certainty based upon our experts with real experience in past permitting, going back to the year 2000!
On a related note, these negotiations with the CA State Water Board will not lift the existing ban on suction dredging in class ‘A’ waters (closed to dredging), under the Fish & Game regulations along with many unreasonable restrictions such as no winching, no dredging within 3 feet of a stream bank, 4” maximum nozzle, etc. Please review the CDFW regulations thoroughly and judge for yourself. https://nrm.dfg.ca.gov/FileHandler.ashx?DocumentID=46636
PLP has a solution to this situation through the “Small Miner Amendments to the NDAA” now presently sitting in the Minerals subcommittee in Congress under review and markup. We are presently being told by the subcommittee chair (Congressman Paul Gosar, AZ), that there is very positive interest in sponsors to get this bill on track for next year. We need and certainly appreciate your moral and financial support to keep this momentum going in the halls of Congress!
As an option, PLP is considering litigating CA SB 637 in Federal District court. Unfortunately, it’s presently beyond PLP’s sole financial means without your added financial support, and especially the promised support from several mining and prospecting organizations which has vaporized. We can’t even consider this option in light of the disappointing fact that AMRA and the GPAA has not committed, nor produced any civil litigation monies to PLP in the past 2 years to fight the ongoing dredge litigation against the State of California.
We believe that the more cost-effective solution is through our present Federal legislative push to override the state and the state court decisions, and to stay on track and within budget. Our “Small Miner Amendments” not only solves the dredgers problems, it solves many, many more regulatory issues in a simple but comprehensive way. Read it on our website if you have not already and tell your Congressman and Senator we need this now!
Read/LEARN/Support/ Join PLP today at our website: www.publiclandsforthepeople.org

Surrendering to the Pollution Permit
There has been a lot of buzz going around lately that “They might let us dredge in 2019” in California. That would truly be awesome after all these years! The small-scale mining industry will be back in full swing. Manufacturers would once again start cranking out dredges and other related equipment; good times to be enjoyed by one and all. That has been and continues to be the goal of Public Lands for the People.
We must at this point perform our due diligence.
Mining groups other than PLP have proposed that miners submit themselves to a water quality permit (permission) from the California Water Board, in order to obtain an additional permit from CDFW with the admission by the applicant that suction dredging for gold is adding a pollutant (although it be deminimus). That means the miner admits he is adding pollution to the waterway, but “please, let us dredge.” This one act alone not only is dishonest due to the fact that dredges remove material from the waterway (net withdrawal), this gives up one’s Mining Rights by contract to the government of California and turns away from the important win in the Godfrey case. Federal Mining rights can only be protected FEDERALLY – not at the state level. State law only fills the gaps where federal law does not speak or specifically occupy on federal lands.
The PLP Board agrees with the concerns the Mining Journal has regarding SB1222: https://www.icmj.com/magazine/article/california-to-allow-suction-dredging-in-2019-3828/
It appears at this time that SB1222 has come to a halt. Good riddance! Preserving federally granted mining rights has been a core value of PLP since its inception and is a responsibility the board will not waiver from. SB1222 as written demonizes the suction nozzle that many smart miners have been using via gravity systems. We cannot in good conscious support submitting to a state agency that will require we relinquish our Federal Mining Rights to a privilege-based permit “permission” system that states dredges pollute, and that the privilege can be taken away at any time via an agency, committee or legislature of the state.
Do you trust the Government or the Legislature of California to be fair? The same Government that some correctly has accused of tyranny, and the same government that continues to defy federal law on many other issues not directly related to mining which affects our whole country and the future of our Republic. This fight against the tyranny of the Government of California has always been that the state can only regulate reasonably. They are not authorized to prohibit! Mining law is authorized through Federal law, which supersedes state law when in conflict. By submitting to the CA Water Board or CDFW for a permit will not guarantee that they cannot deny that permit (permission), at any time in the future, even after permission was given! Is that not what happened to us in 2009?
We have faith that for the first time in a long time we have an Administration in Washington that values the Constitution and the rule of law! That same Administration has recently filed suit against the State of California over FEDERAL PREEMPTION. We believe we are on the verge of seeing great things happen in our country. And boy, it is about time!
This is one analogy:
Soldiers in our Revolutionary War were cold, hungry and tired. They longed for the warmth, safety and freedom they dreamt of and fought so hard for. A number of the men figure that if they could just cut a deal with the British, they could go home to their families, hold their wives and children, and trust that they would be safe and free of tyranny for awhile. That the British would honor the compromise. This sounded very appealing and many soldiers considered compromising.
Fortunately for America, the men of those days would not compromise at all when it came to rights and freedom. Many would be willing to die, and die they did to ensure the Rights and Freedom for future generations, even if it meant extreme pain and discomfort in the present. We consider that Courageous and of Noble Character. Fortunately for us, at this point in time we do not have to face death to stand strong.
Preserving federally granted mining rights has been a core value of PLP since its inception and is a responsibility the board will not waiver from. That is why PLP was founded and we continue in this vein. We understand this point of view may not be popular with some in the mining community, and we KNOW it is unpopular with the ones who want to diminish or take our rights away altogether! We will continue to:
TAKE IT BACK AND KEEP IT!
Federal Mining rights can only be protected FEDERALLY – not at the state level. State law only fills the gaps where federal law does not speak or specifically occupy on federal lands If the prospector / miner does not trust the State of California, then the miner could support the FEDERAL “Small Miner Amendment to S. 145” and join PLP to protect your Federal Mining Rights.

Your Board of Directors,
Public Lands for the People
P.S. Read PLP’s Legal Accomplishments here:
www.publiclandsforthepeople.org/accomplishments/

Surrendering to the Pollution Permit

Surrendering to the Pollution Permit
There has been a lot of buzz going around lately that “They might let us dredge in 2019” in California. That would truly be awesome after all these years! The small scale mining industry will be back in full swing. Manufacturers would once again start cranking out dredges and other related equipment; good times to be enjoyed by one and all. That has been, and continues to be the goal of Public Lands for the People.
We must at this point perform our due diligence.
American Mining Rights Association has proposed that miners submit themselves to a water quality permit (permission) from the California Water Board, with the admission by the applicant that suction dredging for gold is adding a pollutant (although it be deminimus). That means the miner admits he is adding to the waterway, but “please, let us dredge.” This one act alone not only is dishonest due to the fact that dredges remove material from the waterway (net withdrawal), this gives up one’s Mining Rights by contract to the government of California. Federal Mining rights can only be protected FEDERALLY – not at the state level. State law only fills the gaps where federal law does not speak or specifically occupy on federal lands.
The PLP Board agrees with the concerns the Mining Journal has regarding SB1222: https://www.icmj.com/magazine/article/california-to-allow-suction-dredging-in-2019-3828/
PLP views supporting SB1222 as an unnecessary compromise of the Public’s Mining Rights in order for some to get back in the water under a state permit system. Preserving federally granted mining rights has been a core value of PLP since its inception and is a responsibility the board will not waiver from. SB1222 as written demonizes the suction nozzle that many smart miners have been using via gravity systems. We cannot in good conscious support submitting to a state agency that will require we relinquish our Federal Mining Rights to a privilege based permit “permission” system that states dredges pollute, and that the privilege can be taken away at any time via an agency, committee or legislature of the state.
The same Government that AMRA has correctly accused of tyranny, and the same government that continues to defy federal law on many other issues not directly related to mining which affects our whole country and the future of our Republic. This fight against the tyranny of the Government of California has always been that the state can only regulate reasonably. They are not authorized to prohibit! Mining law is authorized through Federal law, which supersedes state law when in conflict. By submitting to the CA Water Board or CDFW for a permit will not guarantee that they cannot deny that permit (permission), at any time in the future, even after permission was given! Is that not what happened to us in 2009? Do you trust the Government or the Legislature of California to be fair?
We have faith that for the first time in a long time we have an Administration in Washington that values the Constitution and the rule of law! That same Administration has recently filed suit against the State of California over FEDERAL PREEMPTION. We believe we are on the verge of seeing great things happen in our country. And boy, it is about time!
This is one analogy:
Soldiers in our Revolutionary War were cold, hungry and tired. They longed for the warmth, safety and freedom they dreamt of and fought so hard for. A number of the men figure that if they could just cut a deal with the British, they could go home to their families, hold their wives and children, and trust that they would be safe and free of tyranny for awhile. That the British would honor the compromise. This sounded very appealing and many soldiers considered compromising.
Fortunately for America, the men of those days would not compromise at all when it came to rights and freedom. Many would be willing to die, and die they did to ensure the Rights and Freedom for future generations, even if it meant extreme pain and discomfort in the present. We consider that Courageous and of Noble Character. Fortunately for us, at this point in time we do not have to face death to stand strong.
Preserving federally granted mining rights has been a core value of PLP since its inception, and is a responsibility the board will not waiver from. That is why PLP was founded and we continue in this vein. We understand this point of view may not be popular with some in the mining community, and we KNOW it is unpopular with the ones who want to diminish or take our rights away altogether! We will continue to:
TAKE IT BACK AND KEEP IT!
PLP’s Summery position regarding SB1222:
Federal Mining rights can only be protected FEDERALLY – not at the state level. State law only fills the gaps where federal law does not speak or specifically occupy on federal lands. If the prospector trusts the State of California to regulate and permit the suction dredger, then supporting SB1222 could be his/her choice. If the prospector does not trust the State of California, then the miner could support the FEDERAL “Small Miner Amendment to S. 145” and join PLP to protect your Federal Mining Rights.

Your Board of Directors,
Public Lands for the People
P.S. Read PLP’s Legal Accomplishments here:
www.publiclandsforthepeople.org/accomplishments/

SMALL MINER AMENDMENTS TO S145

INTRODUCTION

PLP has a proposed small miner amendment to Federal Senate Bill (S 145) sponsored by Senator Dean Heller (R-NV). This small miner amendment, written by our legal researcher Clark Pearson, solves most of the small miner’s regulatory problems observed by PLP over the last 28 years. A tremendous amount of research and on the ground practical knowledge has gone into this amendment. This amendment was written by a working small miner to help all miners, big and small. It provides clear and concise regulatory certainty in dealing with all regulatory bodies the miner faces today. It places clear respect for the “Right of Self-Initiation” under the 1872 Mining Law grant and distinguishes certain permitting to be approved by operation of law, holding the agencies truly accountable to mitigation time limits. It sets straight, clarifies and solves sticking points that have caused years of litigation and grief to the mining community from the State and Federal levels and it does it all in only 5 pages! These 5 pages will remove massive amounts of red-tape from the backs of small miners as well as big operators. This amendment addresses: NEPA, MSHA, casual use that does not require a NOI or PO, due process, Forest Service regulations, State regulations/opting out at the discretion of the miner, EAJA, mineral withdrawals, mitigation time limits/approval by operation of law, and undue regulatory interference by State agencies. PLP is presently seeking co-sponsors on the House and Senate side.

 

Small Miner Amendments to S. 145

RECOGNITION OF THE LIMIT OF THE RIGHT OF SELF-INITIATION UNDER THE 1872 MINING ACT AND THE PERMISSIVE (PERMIT) SYSTEM FOR PURPOSES OF REGULATORY CERTAINTY

(submitted by Public Lands for the People)

 

SECTION 101:  Improving regulatory accountability

Any federal unpatented mining claimant who prevails in a legal action shall be awarded his reasonable fees and expenses of attorneys, including any expert witness charges, to be paid as provided in sections 2414 and 2517 of title 28, except that if the basis for the award is a finding that the United States acted in bad faith, then the award shall be paid by any agency found to have acted in bad faith and shall be in addition to any relief provided in the judgment.

In any other case involving the exercise of rights under the 1872 Mining Act, as amended, section 2412(d)(1)(A) of title 28 shall be applied without regard to the language beginning with the word “unless” or “substantially justified”.

Section 102:  Removing overlapping and duplicative authorities

(a)        16 U.S.C. § 478 is amended by:

(i)         Adding, after “such rules and regulations as may be prescribed by the Secretary of Agriculture,” the phrase “provided, however, that neither the Secretary of Agriculture nor the Secretary of Interior may prohibit or materially restrict motorized access to federal mining claims over historical, visibly-existing or previously-existing trails and roads, or the reasonable restoration or maintenance of such trails and roads”; and

(ii)        Striking “for all proper and lawful purposes, including that of” and striking “the rules and regulations covering such national forests” and inserting “the rules of the Department of Interior concerning mineral development”.

(b)        16 U.S.C. § 551 is amended by adding, after “to regulate their occupancy and use and to preserve the forests thereon from destruction” the phrase “provided, however, that the citation for violation of any such rules and regulations, civil or criminal, is subject to immediate appeal or petition as set forth in 30 U.S.C. § 612(d).”

(c)        16 U.S.C. § 1604 is amended by adding a new subsection (n):

“Renewable Energy” resource planning shall not extend to the development of mineral resources, and renewable resource planning shall be conducted to give full effect to federal mineral development policy as administered by the Secretary of Interior, the Bureau of Land Management.”

(d)       30 U.S.C. § 612 is amended by:

(i) adding at the end of subsection 612(b): “Provided further, that no state or political subdivision of a state shall have duplicative authority to regulate any prospecting, mining or processing operations upon federal lands.”

(ii) Adding a new subsection 612(d) as follows:

“Any federal unpatented mining claimant may petition the Bureau of Land Management that any member of the public or any state or federal agency action endangers or materially interferes with prospecting, mining or processing operations or uses reasonably incident thereto.”

 

Section 103:  Uniform federal regulation

(a)        43 U.S.C. § 1702 is amended as follows:

(i)         New subsections (q), (r) are added:

“(q) ‘mine operator’ means any person or entity exercising rights of or through the holder of a federal unpatented mining claim.

“(r) Generally ‘mining casual use’ means excavation and/or processing (including motorized excavation and processing) of less than 1,000 cubic yards of material annually per claim; or surface disturbance of less than five acres of ground; use, maintenance, or occupancy of visibly-existing or previously-existing roads, trails, tunnels, mill sites, refining sites, bridges, or existing mining-related buildings; staging, use or occupancy of portable or removable equipment; subsurface operations; or any combination of the foregoing or similarly-limited mineral development activities.”

(b)       A new section is created at 43 U.S.C § 1748(c), titled: “Administration of Unpatented Mining Claims” with the following additions:

 

“(a)      Federal unpatented mining claims are tracts of public land dedicated to the particular purpose of mineral development, and the exercise of the property rights in federal mining claims are to be managed exclusively in accordance with this section.”

“(b)      Notices of Initiation (NOI) and Plans of Operation (POO)

“(i)       Mine operators may proceed with mining casual use without notice to the Bureau of Land Management (BLM).”

“(ii)      Mine operators must provide a Notice of Initiation (NOI) to the BLM thirty (30) days in advance of commencing mining operations beyond casual use. If BLM fails to respond to the NOI within thirty (30) days, the mine operator may commence operations, unless the operation involves a surface disturbance in excess of 100 acres but less than 1000 acres, in which case BLM shall have twelve (12) months to respond and mitigate impacts, after which the operation is approved by operation of law.  All other operations exceeding 1000 acres shall be covered under a plan of operations and approved by operation of law within twenty-four (24) months”

“(c)      Upon receipt of a NOI, BLM shall review the proposed operations for compliance with best management practices and issue a determination as to what, if any, additional best management practices are required.  NOIs may be of any duration specified by the mine operator, and the BLM’s determination with respect to the NOI shall remain effective for so long as operations continue as specified in the NOI and may be assigned to future mine operators.”

“(i) Final reclamation activity in general shall only be required if a mine operator and BLM geologist concur that an ore body is exhausted and that the reclamation will not impede future operations.  Seasonal reclamation activity may be required if it will not materially interfere with future mining operations.”

“(ii)      Reclamation bonding shall only apply if surface disturbance exceeds 5 acres or 1000 cu. yards annually of processed material per claim.  Haul roads, utility roads, temporary milling sites and portable structures, and any other pre-existing land disturbance shall not be included in the 5-acre calculation.  Reclamation costs shall be based upon the average of 3 independent bids.  BLM shall recognize and give effect to bonding pools through a memorandum of understanding to assist large and small mine operators in meeting the requirements of this section.  The bids for bonds and reclamation costs may not be reviewed more often than once every 7 years.  Reclamation bonds shall be refunded to the mining operator within one (1) year of completion of the reclamation, even if the site is subject to continuing monitoring.”

“(d) Any personnel employed by BLM to review an NOI shall have qualifications of at least a bachelor’s degree in mine engineering with a minimum of three (3) years or more experience in private sector commercial mining operations or over five (5) years production mining experience in lode, placer and milling operations.”

 

“(e)      If BLM determines that any mine operator is conducting operations beyond casual use without providing an NOI, or that any mine operator is conducting operations contrary to best management practices, BLM must provide formal, written notice to the mine operator through a Notice of Noncompliance.  Such notice shall describe the noncompliance and shall specify the action to comply and the time within which such action is to be completed, generally not to exceed thirty (30) days, provided, however, that days during which the area of operations is inaccessible shall not be included when computing the number of days allowed for compliance.  The requirements to issue a Notice of Non-compliance shall apply whether or not the operator has a submitted NOI on file with the BLM and shall not be used to shut down the entire mineral operation.  Actual notice shall be presumed effective when mailed by certified mail, return receipt requested to the owner of the mining claim and operator of record as specified in BLM records, or personally served upon the mine operator.  No enforcement action by any agency, civil or criminal, may be commenced until after delivery of such notice, and no adverse action may be taken against a mine operator until after a hearing with the protections of 5 U.S.C. § 554.  No enforcement action shall halt compliant aspects of the operations that the operator qualifies under casual use activities.”

“(f)      Action with respect to any NOI shall not be ‘major federal action’ within the meaning of 42 U.S.C. § 4332 or ‘agency action’ within the meaning of 16 U.S.C. § 1536(a)(2).”

 

 

 

Section 104.  Mine operation exemptions from the Clean Water Act

(a)        “Mining operations which do not add any chemicals to excavated aggregate or ore, other than water, and native materials, shall not be considered an “addition of any pollutant” within the meaning of 33 U.S.C. § 1362(12).”

(b)        “Mining and processing discharges from mining and processing involving the use of biodegradable chemicals that have a Material Safety Data Sheet (MSDS) reading, “This product is not classified as dangerous for the environment,” “The risk of environmental effects is considered small”, or substantially equivalent language.”

(c)        “Suction dredge and bucket excavation mining within the natural 100-year flood plain of a water body, or operations contained through artificial impoundments to reduce offsite sediment transport comprise incidental fallback and do not represent an “addition” or “discharge” within the meaning of 33 U.S.C. §§ 1341, 1342 or 1344.”

(i)         “Incidental fallback” is defined as: native rock, sand, soil, or vegetative materials picked up, processed to remove or reclaim the mined metal or minerals, and then backfilled at or near the same excavation site.  Offsite turbidity in connection with incidental fallback is also not an “addition” or “discharge” within the meaning of 33 U.S.C. §§ 1341, 1342 or 1344.”

 

Section 105:  SMALL MINER EXEMPTION

30 U.S.C. § 803 is amended to add the following two items at the end of the section:

“Provided, however, that operations without any employees, or who hire other non-mining work personnel, are exempt from the provisions of this Chapter and any regulations promulgated thereunder.”

“The Mine Safety and Health Administration (MSHA) must provide formal, written due process notice to the mine operator through a Notice of Noncompliance prior to citation. Such notice shall describe the noncompliance and shall specify the action to comply and the time within which such action is to be completed, generally not to exceed thirty (30) days, provided, however, that days during which the area of operations is inaccessible shall not be included when computing the number of days allowed for compliance.  The requirements to issue a citation shall apply only to visible violations that have not been complied with and shall not be used to shut down the entire mineral operation.  Actual notice shall be presumed effective when mailed by certified mail, return receipt requested to the owner of the mining claim and operator of record as specified in MSHA records, or personally served upon the mine operator.  No enforcement action by MSHA, civil or criminal, may commence until after delivery of such notice, and no adverse action may be taken against a mine operator until after a hearing with the protections of 5 U.S.C. § 554, unless death or injury has resulted from the non-compliance.”

 

Section 106:  Review and revise existing federal regulations

The Secretary of Interior shall review and revise existing federal regulations, including but not limited to 36 C.F.R. Part 9 and 43 C.F.R. Parts 4 and 3800, to make them congruent with this Act.  The Secretary of Agriculture shall review and revise existing federal regulations to make them congruent with this Act, including but not limited to the striking or repeal of 36 C.F.R. Part 228.  The Secretary of Labor shall review and revise existing federal regulations to make them congruent with this Act, including but not limited to 30 C.F.R. Parts 1-199.  The Administrator of the Environmental Protection Agency shall review and revise existing federal regulations to make them congruent with this Act, including but not limited to 40 C.F.R. Parts 1-50.

 

Section 107: FEDERAL CONSENT ON PUBLIC LANDS

No federal consent decree may be entered into or is binding which effects or affects mineral development upon federal lands without written concurrence those federal unpatented mining claimants affected to be heard in connection with entry of the decree.

 

Section 108:  DISCRETION OF THE OWNER OR MINERAL OPERATOR

30 U.S.C. § 43 is amended by adding “Any patented mineral lands whereby the State has not declared its intent to regulate surface disturbances as required by provisions of this act; the land owner or mineral operator at his/her own discretion, may continue to be regulated exclusively under federal law and this part as to surface disturbance and environmental compliance.  Duplicative permitting authority by any State agency or subdivision thereof shall be deemed waived by the State, at the discretion of the owner or mineral operator of the property, unless expressly disclosed in the mineral patent.”

 

Section 109: MINERAL WITHDRAWN LANDS

43 U.S.C. § 1712(e)(3) is amended by substituting for the phrase “public lands shall be removed from or restored to the operation of the Mining Law of 1872, as amended (R.S. 2318–2352; 30 U.S.C. 21 et seq.) or transferred to another department, bureau, or agency only by withdrawal action pursuant to section 1714 of this title or other action pursuant to applicable law:” and substituting the phrases “no existing federal managed lands after 1976 shall be removed from operation of the Mining Law of 1872, as amended (R.S. 2318–2352; 30 U.S.C. 21 et seq.), except by Act of Congress.  Public lands and federal managed lands reserved under other laws prior to 1976 that have been withdrawn from mineral entry shall be reopened upon petition showing of valuable metals, minerals, or rare earths, upon concurrence of a competent geologist within six (6) months, and upon submission to Congress.”

CA Suction Dredge Legal Update 10/17/2017

Here the the latest LONG chapter in the continuing legal saga in California:

As you may recall, the Court has repeatedly delayed resolution of several outstanding motions and issues, most of which were filed more than a year ago.  These issues include:  (1) the miners’ attacks on the SEIR and 2012 regulations as violating CEQA and the APA; (2) the miners’ “one subject” attack on AB 120 and SB 1018; (3) whether the Court should vacate its prior federal preemption decision in light ofRinehart; and (4) whether the takings claims should be dismissed as a matter of law.

 

Yesterday, shortly before noon, Judge Ochoa issued a tentative ruling (attached), which appeared to reject the state’s attempt to establish that there can never be a takings case for nonpatented claims, but to deny our “one subject motion”.  The tentative ruling seemed to ignore all the CEQA/APA briefing entirely, and it was evident that the Court had not read all of the “one subject” briefs as well.  In the tentative ruling, the Judge seemed to think that AB 120 and SB 1018 made no changes in substantive law, and therefore did not violate the “one subject” rule.  Worst of all, he seemed convinced that somehow, because water quality permits were not yet available under SB 637, the miners could make no claims at all, because winning the case now would now not get them back in the water.

 

I traveled down to San Bernardino for the hearing, and after some delay, the Department sought an audience with the Judge in chambers.  There we heard about complications in his shoulder surgery, and he confirmed that he had been unaware of the earlier CEQA/APA briefing and had not read all the “one subject” briefs.  He also reaffirmed his view that somehow, SB 637 excused any need to resolve all these issues, which the Department resisted to the extent they were seeking guidance on the CEQA/APA issues.   As to the taking claim, the Department threatened the Court with further hearings and a long trial if he did not dismiss it.  After some discussion, the Judge declared that we might as well argue all the issues, including the CEQA/APA issues.  By this time, there was so little time left that he declared we could only have half an hour or so to argue, plus, perhaps, some rebuttal time.

 

Back in the courtroom, I outlined the history of how AB 120 and SB 1018 were substantive interferences in the consent decree/EIR process, and a perfect example of the sort of special interest legislation the “one subject” rule was invented to stop.  And I explained that these cases has been filed long before SB 637 took effect, and that the Judge had resisted our attempt to bring the water quality issues into the case.  The Department responded by misrepresenting the law of the “one subject” rule, and, ironically, agreeing with me that it was not entirely satisfactory to declare that the miners lacked standing because of SB 637, because we would just be back again later when the Water Quality Board finally finished its process. 

 

I then turned to CEQA and APA, but by then I had only fifteen minutes left, so I gave a highly abbreviated version of the argument, referring Judge Ochoa to the briefs for further guidance.  The Department made the standard argument that the Court must believe anything it said (“a high degree of deference”).  The Judge seemed somewhat uninterested in the argument, and asked the Department why the Karuk Tribe had been willing to walk away from the litigation, believing its interests were adequately protected by SB 637.  The Department had no answer (later on, the Tribal attorney, listening in, tried offer an answer, but I objected that they were no longer parties, and the Judge did not allow the Tribal attorney to speak). 

 

The Department then argued the takings motion, making some rather spectacular misrepresentations that unpatented mining claims were not property at all, and misrepresenting the cases involved.  I had the apprehension, which will hopefully not be proved correct, that the Department’s threat to draw out the takings litigation might be pushing Judge Ochoa away from his tentative ruling in our favor. 

 

In particular, my fear is that it will prove overwhelmingly attractive for the Judge to just string together a series of words that throw out the takings and “one subject” claims, and excuse himself from wrestling with the complex CEQA/APA claims.  I closed by begging that if we could not stop the relentless legal and regulatory changes wiping us out, the minimal requirement of justice was that we be compensated when the claims were seized for fish reserves.  I found it particularly discouraging when he complimented all of us on the quality of our advocacy, as if he were done with us, and the only remaining recourse was with the Court of Appeal.

 

A ruling is expected in a couple of months.  

 

James L. Buchal

 

Here is the tentative ruling from Judge Ochoa:

COURT’S TENTATIVE RULING-

 

IN RE SUCTION DREDGE MINING CASES

 

 

Included Actions:[1]

 

  • Kimble, et al. v. Harris, et al., Case No. CIVDS1012922, San Bernardino County,

Filed September 15, 2010 (“Kimble”);

 

  • Karuk Tribe, et al. v. Calif. Dept. of Fish & Game,[2] et al., Case No. RG12623796, Alameda County, filed April 2, 2012 (“Karuk II”);

 

  • Public Lands for the People, et al. v. State of Calif., et al., Case No. CIVDS1203849, San Bernardino County, filed April 12, 2012 (“PLP”)

 

  • The New 49’ers, Inc., et al. v. Calif. Dept. of Fish & Game, et al., Case No. SCCVCV1200482, Siskiyou County, filed April 13, 2012 (“New 49’ers”);

 

  • Walker v. Kamala Harris, et al., Case No. 34-2013-80001439, Sacramento County, filed March 14, 2013 (“Walker”);

 

  • Foley v. Calif. Dept. of Fish & Wildlife, et al., Case No. SCCVCV1300804, Siskiyou County, filed July 1, 2013 (“Foley”); and

 

  • Eimer, et al. v. Calif. Dept. of Fish & Wildlife, et al., Case No. CIVDS1509427, San Bernardino County, filed July 6, 2015 (“Eimer”)

 

  • Motion: Motion for Judgment on the Pleadings (Takings)  (see pg. 2)

                       

           Movant:           Defendants California Dept. of Fish & Game, et al.

 

           Respondent:    Plaintiffs The New 49’ers, Inc., et al.

 

 

 

 

  • Motion: Motion for Summary Judgment (Single Subject)  (see pg. 39)

                       

            Movant:          Plaintiffs/Petitioners Derek Eimer, Stephen Jones, David Guidero,        Marvin Lampshire II, and Dyton Gilliland

 

            Respondent:   Defendant/Respondent California Department of Fish & Wildlife

 

  • Motion: Motion for Judgment on the Pleadings (SB 637) (see pg. 49)

                       

            Movant:          Defendant/Respondent California Department of Fish & Wildlife

 

            Respondent:   Plaintiffs/Petitioners Derek Eimer, Stephen Jones, David Guidero,                                            Marvin Lampshire II, and Dyton Gilliland

 

______________________________________________________________________________

 

Motion for Judgment on the Pleadings (Takings)

 

  1. Factual Background

Suction dredge mining entails the use of a vacuum or suction system to remove and return material at the bottom of a river, stream, or lake for the extraction of minerals, primarily gold. [AR A005617-34.] (See also, People v. Osborn (2004) 116 Cal.App.4th 764, 768; 14 Cal. Code Regs. (CCR), § 228(a).)  “In suction dredge mining, the gravel within the active stream channel is suctioned from the bottom of the stream and processed over a sluice on a floating platform. A gasoline powered motor and pump are mounted on the floating platform for powering the suction apparatus and for driving the air pump which supplies air to the persons working underwater. The size of dredges used in California ranges from 2-inches to up to 10-inches or more.” (Karuk Tribe of Cal. v. U.S. Forest Service (N.D. Cal. 2005) 379 F.Supp.2d 1071, 1080, fn. 5, citations, quotation marks, and brackets omitted, rev’d on other grounds (9th Cir. 2012) 681 F.3d 1006.)

CDFW serves as California’s trustee agency for the State’s fish and wildlife. The department is responsible for managing diverse fish, wildlife, and plant resources, and their respective habitats, as well as the ecological value of these resources and their use/enjoyment by the public.  (F&G Code, §§ 711.7, subd. (a), 1802.)

Generally, in 1961, CDFW was first given the statutory authority to regulate suction dredging, and the use of any related equipment.  (Stats. 1961, ch. 1816.) [AR A005523.]  In 1994, CDFW promulgated suction dredge mining regulations, and prepared and certified a related environmental impact report (“EIR”) under CEQA (hereinafter, “1994 EIR”).  [AR A060020-196.]  The 1994 EIR was not challenged.  [AR A049319.]  Since 1995, pursuant to California Fish & Game Code section 5653, the use of any vacuum or suction dredge equipment by any person in any river, stream or lake in California has been prohibited, unless authorized under a permit issued by CDFW.  (F&G Code, § 5653, subd. (a).)

Until December 31, 2015, F & G Code § 5653 stated as follows:[3]

 

(a) The use of any vacuum or suction dredge equipment by any person in any river, stream, or lake of this state is prohibited, except as authorized under a permit issued to that person by the department in compliance with the regulations adopted pursuant to Section 5653.9. Before any person uses any vacuum or suction dredge equipment in any river, stream, or lake of this state, that person shall submit an application for a permit for a vacuum or suction dredge to the department, specifying the type and size of equipment to be used and other information as the department may require.

(b) Under the regulations adopted pursuant to Section 5653.9, the department shall designate waters or areas wherein vacuum or suction dredges may be used pursuant to a permit, waters or areas closed to those dredges, the maximum size of those dredges that may be used, and the time of year when those dredges may be used. If the department determines, pursuant to the regulations adopted pursuant to Section 5653.9, that the operation will not be deleterious to fish, it shall issue a permit to the applicant. If any person operates any equipment other than that authorized by the permit or conducts the operation in any waters or area or at any time that is not authorized by the permit, or if any person conducts the operation without securing the permit, that person is guilty of a misdemeanor.

(c) The department shall issue a permit upon the payment, in the case of a resident, of a base fee of twenty-five dollars ($25), as adjusted under Section 713, when an onsite investigation of the project size is not deemed necessary by the department, and a base fee of one hundred thirty dollars ($130), as adjusted under Section 713, when the department deems that an onsite investigation is necessary. In the case of a nonresident, the base fee shall be one hundred dollars ($100), as adjusted under Section 713, when an onsite investigation is not deemed necessary, and a base fee of two hundred twenty dollars ($220), as adjusted under Section 713, when an onsite investigation is deemed necessary.

(d) It is unlawful to possess a vacuum or suction dredge in areas, or in or within 100 yards of waters, that are closed to the use of vacuum or suction dredges.

[Added Stats 1986 ch. 1368 § 23. Amended Stats 1988 ch. 1037 § 1; Stats 1994 ch. 775 § 1 (AB 1688); Stats 2006 ch. 538 § 185 (SB 1852), effective January 1, 2007.]

 

Pursuant to SB 670 (effective 8/6/09), AB 120 (effective 7/26/11), SB 1018 (effective 6/27/12), and F & G Code § 5653.1, a conditional proscription against vacuum and suction dredging activities was enacted.  Section 5653.1 currently states:

(a) The issuance of permits to operate vacuum or suction dredge equipment is a project pursuant to the California Environmental Quality Act (Division 13 (commencing with Section 21000) of the Public Resources Code) and permits may only be issued, and vacuum or suction dredge mining may only occur as authorized by any existing permit, if the department has caused to be prepared, and certified the completion of, an environmental impact report for the project pursuant to the court order and consent judgment entered in the case of Karuk Tribe of California et al. v. California Department of Fish and Game et al., Alameda County Superior Court Case No. RG 05211597.

(b) Notwithstanding Section 5653, the use of any vacuum or suction dredge equipment in any river, stream, or lake of this state is prohibited until the director certifies to the Secretary of State that all of the following have occurred:

(1) The department has completed the environmental review of its existing suction dredge mining regulations, as ordered by the court in the case of Karuk Tribe of California et al. v. California Department of Fish and Game et al., Alameda County Superior Court Case No. RG 05211597.

(2) The department has transmitted for filing with the Secretary of State pursuant to Section 11343 of the Government Code, a certified copy of new regulations adopted, as necessary, pursuant to Chapter 3.5 (commencing with Section 11340) of Part 1 of Division 3 of Title 2 of the Government Code.

(3) The new regulations described in paragraph (2) are operative.

(4) The new regulations described in paragraph (2) fully mitigate all identified significant environmental impacts.

(5) A fee structure is in place that will fully cover all costs to the department related to the administration of the program.

(c) (1) To facilitate its compliance with subdivision (b), the department shall consult with other agencies as it determines to be necessary, including, but not limited to, the State Water Resources Control Board, the State Department of Public Health, and the Native American Heritage Commission, and, on or before April 1, 2013, shall prepare and submit to the Legislature a report with recommendations on statutory changes or authorizations that, in the determination of the department, are necessary to develop the suction dredge regulations required by paragraph (2) of subdivision (b), including, but not limited to, recommendations relating to the mitigation of all identified significant environmental impacts and a fee structure that will fully cover all program costs.

(2) The requirement for submitting a report imposed under this subdivision is inoperative on January 1, 2017, pursuant to Section 10231.5 of the Government Code.

(3) The report submitted to the Legislature pursuant to this subdivision shall be submitted in accordance with Section 9795 of the Government Code.

(d) The Legislature finds and declares that this section, as added during the 2009-10 Regular Session, applies solely to vacuum and suction dredging activities conducted for instream mining purposes. This section does not expand or provide new authority for the department to close or regulate suction dredging conducted for regular maintenance of energy or water supply management infrastructure, flood control, or navigational purposes governed by other state or federal law.

(e) This section does not prohibit or restrict nonmotorized recreational mining activities, including panning for gold.

 

Therefore F & G Code § 5653.1, effectively prohibited suction dredge mining throughout the State until the Director of the CDFW certified that: (1) the Department has completed environmental review of its suction dredge regulations pursuant to CEQA; (2) CDFW promulgated new regulations, as necessary, based on that environmental review; (3) the new regulations were operative; (4) the new regulations “fully mitigate all identified significant environmental effects”; and (5) a “fee structure is in place that will fully cover all costs to the Department” related to administration of its suction dredge permit program.  (F & G Code, §5653.1, subd. (b).) The Legislature found this moratorium necessary because “suction or vacuum dredge mining results in various adverse environmental impacts to protected fish species, the water quality of this state, and the health of the people of this state.”  (Stats. 2009, ch. 62, § 2.)

  1. Procedural Background

In May 2005, the Karuk Tribe of California filed a lawsuit against CDFW (hereinafter, “Karuk I”) alleging that the then-existing suction dredge permit program was deleterious to fish, and violated both CEQA and the Fish & Game Code.  [AR A005524.]  In 2006, The New 49’ers and others intervened in the Karuk I action.  [AR A005524.]  In December 2006, an Order and Consent Judgment (“Consent Order”) was entered in Karuk I wherein the Alameda County Superior Court directed CDFW to “conduct further environmental review pursuant to CEQA of its suction dredge mining regulations and to implement, if necessary, via rulemaking, mitigation measure to protect Coho salmon and/or other special status fish species in the watershed of the Klamath, Scott, and Salmon Rivers, listed as threatened or endangered after the 1994 EIR.”  [AR A049200-11.]  The Karuk Tribe, CDFW, Leaf Hillman, The New 49’ers, Raymond Koons, and Gerald Hobbs, and their respective counsel stipulated to this Consent Order.[4]  [AR A049203-07.]

Subsequently, CDFW took steps to prepare for the ordered environmental review, and obtained funding from the Legislature to do so.  [AR 049339.]  However, on July 9, 2009, the Alameda Superior Court issued a preliminary injunction in the Hillman case,[5] enjoining CDFW “from expending any funds obtained by them from the State of California General Fund to issue suction dredge permits pursuant to Fish and Game Code section 5653 and 14 CCR § 228 and §228.5.”  [AR 049331.]  The Alameda Court found: (1) “issuance of a suction dredge permit without a discretionary determination that the operation … is not deleterious to fish is a direct violation of the mandatory duty imposed on the [CDFW] by [Section] 5653(b), and is therefore unlawful; and (2) “there is new information that gives rise to a fair argument of environmental impact and that an environmental review is mandated by CEQA prior to the implementation of any further discretionary acts by the [CDFW].”  [AR A049327, A049329.]  As a result, CDFW stopped issuing suction dredge permits shortly thereafter.  [AR A049942.]  Subsequently, F & G Code section 5653.1 was enacted, which prohibited suction dredge mining until environmental review was completed, and new regulations put in place.  [AR A049937.] (Stats. 2009, ch. 62.)

In October 2009, CDFW released a CEQA Initial Study and Notice of Preparation for public review.  [AR A006309-423.]  CDFW held public meetings, received hundreds of public comment letters, convened a Public Advisory Committee, and hired an economics firm to evaluate the economic impact of suction dredge mining.  [AR A005533-34, A006433-60, A006464-79, A008104-226, A008235-53, A008283-323, A008587-623, A024824-026254.]  As a result, CDFW informed the Alameda Court that it intended to prepare a subsequent EIR (“SEIR”) to comply with the Court’s December 2006 Order.[6]  [AR A005495.]  In February 2011, CDFW developed and released a draft of proposed regulations and a draft subsequent EIR (hereinafter, “DSEIR”).  [AR 005479-006305.]  In addition, CDFW issued an initial statement of reasons pursuant to the APA.  [AR 009665-74.]

CDFW conducted several public hearings and received hundreds of written comments regarding the DSEIR.  In February 2012, after reviewing the public comments, CDFW determined that some changes to the proposed regulations were necessary.  [AR A000013, A009678-773.]  On March 16, 2012, the CDFW completed the required environmental review, released the final EIR (hereinafter, “FEIR”) and the final statement of reasons, and adopted updated regulations, effective April 27, 2013.[7]  [AR A000092-686, A009825-942.]

On April 1, 2013, pursuant to Section 5653.1(c), CDFW submitted its required report to the Legislature “on statutory changes or authorizations that, in the determination of the department, are necessary to develop the suction dredge regulations required by paragraph (2) of subdivision (b), including, but not limited to, recommendations relating to the mitigation of all identified significant environmental impacts and a fee structure that will fully cover all program costs.”  (Stats. 2012, Ch. 39, § 7 [amending F&G Code § 5653.1, subds. (b), (c)(1)]; Stats. 2011, ch. 133, § 6.)

In the interim, while CDFW was preparing and circulating the DSEIR and FSEIR, Plaintiffs filed the various actions that are currently before this Court (Kimble, Karuk II, PLP, The New 49’ers, Walker, and Foley).

III.       Karuk Tribe Dismissal and New Legislation

On November 16, 2015, Karuk filed a Request for Dismissal of its action.  A few days later, Karuk filed a Stipulation and Proposed Order Resolving Attorneys’ Fees and Costs, wherein it stated that Karuk dismissed their action without prejudice due to the enactment of Senate Bill 637, which was signed into law on October 9, 2015, and became effective as of January 1, 2016. Karuk believed that through this new legislation, they had achieved the primary relief sought in this litigation, and thus, decided not to expend their resources on the remainder of this action.[8]

As noted above, after CDFW finalized the 2012 FSEIR, the Legislature required CDFW to submit a report and recommendations regarding statutory changes or authorizations that CDFW thought were necessary to develop the suction dredge regulations.  In April 2013, CDFW provided the requisite report and recommendations.  In response, the Legislature enacted S.B. No. 637 which, in part, addressed the “significant and unavoidable” environmental effects identified by CDFW.  (Stats. 2015, ch. 680.)

S.B. No. 637 amended Section 5653 as follows: [9]

(a) The use of vacuum or suction dredge equipment by a person in a river, stream, or lake of this state is prohibited, except as authorized under a permit issued to that person by the department in compliance with the regulations adopted pursuant to Section 5653.9. Before a person uses [] vacuum or suction dredge equipment in a river, stream, or lake of this state, that person shall submit an application to the department for a permit to use the vacuum or suction dredge equipment, specifying the type and size of equipment to be used and other information as the department may require pursuant to regulations adopted by the department to implement this section.

 

(b) (1) The department shall not issue a permit for the use of vacuum or suction dredge equipment until the permit application is deemed complete. A complete permit application shall include any other permit required by the department and one of the following, as applicable:

(A) A copy of waste discharge requirements or a waiver of waste discharge requirements issued by the State Water Resources Control Board or a regional water quality control board in accordance with Division 7 (commencing with Section 13000) of the Water Code.

(B) A copy of a certification issued by the State Water Resources Control Board or a regional water quality control board and a permit issued by the United States Army Corps of Engineers in accordance with Sections 401 and 404 of the Federal Water Pollution Control Act (33 U.S.C. Secs. 1341 and 1344, respectively) to use vacuum or suction dredge equipment.

(C) If the State Water Resources Control Board or the appropriate regional water quality control board determines that waste discharge requirements, a waiver of waste discharge requirements, or a certification in accordance with Section 1341 of Title 33 of the United States Code is not necessary for the applicant to use of vacuum or suction dredge equipment, a letter stating this determination signed by the Executive Director of the State Water Resources Control Board, the executive officer of the appropriate regional water quality control board, or their designee.

 

(c) Under the regulations adopted pursuant to Section 5653.9, the department shall designate waters or areas wherein vacuum or suction dredge equipment may be used pursuant to a permit, waters or areas closed to the use of that equipment, the maximum size of the vacuum or suction dredge equipment that may be used, and the time of year when the equipment may be used. If the department determines, pursuant to the regulations adopted pursuant to Section 5653.9, that the use of vacuum or suction dredge equipment does not cause any significant effects to fish and wildlife, it shall issue a permit to the applicant. If a person uses vacuum or suction dredge equipment other than as authorized by a permit [] issued by the department consistent with regulations implementing this section [], that person is guilty of a misdemeanor.

 

(d) (1) Except as provided in paragraph (2), the department shall issue a permit upon the payment, in the case of a resident, of a base fee of twenty-five dollars ($25), as adjusted under Section 713, when an onsite investigation of the project size is not deemed necessary by the department, and a base fee of one hundred thirty dollars ($130), as adjusted under Section 713, when the department deems that an onsite investigation is necessary. Except as provided in paragraph (2), in the case of a nonresident, the base fee shall be one hundred dollars ($100), as adjusted under Section 713, when an onsite investigation is not deemed necessary, and a base fee of two hundred twenty dollars ($220), as adjusted under Section 713, when an onsite investigation is deemed necessary.

(2) The department may adjust the base fees for a permit described in this subdivision to an amount sufficient to cover all reasonable costs of the department in regulating suction dredging activities.

 

(e) It is unlawful to possess a vacuum or suction dredge in areas, or in or within 100 yards of waters, that are closed to the use of vacuum or suction dredges.

 

(f) A permit issued by the department under this section shall not authorize an activity in violation of other applicable requirements, conditions, or prohibitions governing the use of vacuum or suction dredge equipment, including those adopted by the State Water Resources Control Board or a regional water quality control board. The department, the State Water Resources Control Board, and the regional water quality control boards shall make reasonable efforts to share information among the agencies regarding potential violations of requirements, conditions, or prohibitions governing the use of vacuum or suction dredge equipment.

 

(g) For purposes of this section and Section 5653.1, the use of vacuum or suction dredge equipment, also known as suction dredging, is the use of a mechanized or motorized system for removing or assisting in the removal of, or the processing of, material from the bed, bank, or channel of a river, stream, or lake in order to recover minerals. This section and Section 5653.1 do not apply to, prohibit, or otherwise restrict nonmotorized recreational mining activities, including panning for gold.

(2015 California Senate Bill No. 637, California 2015-2016 Regular Session [emphasis added].)

 

According to Karuk, the changes to section 5653 adequately addressed water quality impacts, as well as impacts to wildlife and cultural resources.  [See, 11/19/15 Stip. & Order (copy attached).]  As a result, Karuk dismissed their remaining claims because they believe their primary litigation goals – i.e., compelling CDFW to mitigate impacts of suction dredge mining, and to comply with CEQA and the Fish & Game statutes – were addressed by the amendment.  [Id.]

  1. Issues Currently Before the Court

On May 1, 2014, this Court heard several summary adjudication motions on the issue of federal preemption as it relates to pre-amendment Section 5653, Section 5653.1, and the related CEQA Guidelines. On January 12, 2015, this Court found “as a matter of law and in actual fact, that the State’s extraordinary scheme of requiring permits and then refusing to issue them  and/or being unable to issue permits for years, stands “as an obstacle to the accomplishment of the full purposes and objectives of Congress”.[10]

In May and June 2015, the parties filed their respective Statement of Issues wherein each set forth what they thought remained of the case.  The Karuk Coalition, before their voluntary dismissal, asserted that issues pertaining to CEQA, violations of the F & G Code, and Declaratory Relief remained.  As for the Miners (PLP, Kimble, and The New 49’ers), they believed the CEQA and APA issues were technically moot due to this Court’s January 2015 ruling.  CDFW believed the CEQA and APA issues remained.

On July 6, 2015, The New 49’ers filed a new Complaint and Petition, as Case Number CIVDS1509427, in order to add new individual plaintiffs Derek D. Eimer, Stephen Jones, David Guidero, Marvin Garry Lampshire II, and Dyton W. Gilliland.  After consolidation with the current litigation, a First Amended Complaint and Petition was filed in the new action, wherein The New 49’ers and the new individual Plaintiffs alleged causes of action for Federal Preemption and violations of the One Subject Rule.

On November 10, 2015, Plaintiffs/Petitioners Eimer, Jones, Guidero, Lampshire, and Gilliland filed a Motion for Summary Judgment, on the grounds that Assembly Bill 120 and Senate Bill 1018 embrace more than one subject, and thus violate Article IV, § 9 of the California Constitution. The remaining Plaintiffs – Kimble, PLP, and The New 49’ers – concurrently sought adjudication of the remaining CEQA and APA issues in the Writ Petition, pursuant to Public Resources Code sections 21168 and 21168.5, and Code of Civil Procedure sections 1085 and 1094.5.  Plaintiffs sought an order setting aside the FSEIR as void, or alternatively, setting aside the 2012 regulations as void, and reinstating the 1994 regulations until such time as CDFW has lawfully promulgated further regulations.  However, this Court stayed the action pending the ruling by the California Supreme Court on People v. Rinehart.

On August 22, 2016, the Supreme Court issued its Rinehart decision wherein it reversed the ruling of the Court of Appeal.  Since this Court’s January 2015 MSA/MSJ ruling rested largely on the appellate court’s then-published opinion, the reversal by the Supreme Court means that the MSA/MSJ ruling has to be vacated.  Accordingly, on November 14, 2016, this Court lifted the stay, and set a hearing regarding the effect of the Rinehart decision on the issues in the current litigation.

On May 26, 2017, CDFW filed a Motion for Judgment on the Pleadings, as well as a supporting brief on the impact of the Rinehart decision.  The Miners have responded, and this matter is now before the Court.

DISCUSSION

  1. Procedural Issue

CDFW notes that the defendant/appellant in the Rinehart case, Mr. Brandon Rinehart, has filed a petition for certiorari with the United States Supreme Court challenging the California Supreme Court’s decision.  That petition is apparently still pending, and a decision on the petition will likely not be handed down until the upcoming term.  However, on May 15, 2017, the U.S. Supreme Court invited the Acting Solicitor General to file a brief discussing the views of the United States on the issues.  CDFW notes that the United States filed an amicus curiae brief in the California Supreme Court case wherein a ruling against preemption was advised.

The Miners do not mention this pending cert petition in their brief, and neither party suggests that this matter should be stayed pending a decision from the U.S. Supreme Court as to whether it will hear the case in their papers. This issue was discussed at the last hearing briefly and the Court decided to move forward since both sides have fully briefed the issues arising out of the California Supreme Court’s Rinehart ruling.

  1. Rinehart Decision

On August 22, 2016, the California Supreme Court handed down its decision in People v. Rinehart (2016) 1 Cal.5th 652.  In the underlying case, defendant Brandon Rinehart had been charged by criminal complaint, pursuant to Fish & Game Code section 5653, with possession and unpermitted use of a suction dredge.  Rinehart demurred to the complaint, and argued that sections 5653 and 5653.1 effectively banned suction dredging in California, thus preventing him from using the only commercially practicable method of extracting gold from his unpatented mining claim.[11]  Rinehart also argued that under federal mining laws, Congress intended to grant prospectors the right to mine on federal land free from material interference, and as a result, sections 5653 and 5653.1 should be preempted as an obstacle to those federal purposes and objectives. (Rinehart, supra, 1 Cal.5th at pp. 658-659.)  The trial court overruled the demurrer, thus rejecting Rinehart’s preemption defense as a matter of law.  The trial court also excluded testimony which would have supported Rinehart’s defense.  After a bench trial, Rinehart was convicted on both counts and sentenced to three years’ probation.  (Id. at p. 659.)

The Court of Appeal reversed, and agreed with Rinehart that “federal mining law should be interpreted as preempting any state law that unduly hampers mining on federal land.”  (Rinehart, supra, 1 Cal.5th at p. 659.)  In addition, the Court of Appeal concluded Rinehart had set forth a colorable argument that: (1) the state regulatory scheme amounted to a de facto ban on suction dredging; and (2) the ban effectively rendered mining “‘commercially impracticable.’”  (Id., quoting California Coastal Comm’n v. Granite Rock Co. (1987) 480 U.S. 572, 587, 107 S.Ct. 1419, 94 L.Ed.2d 577 (Granite Rock).)  Since the determination of these points rested on disputed issues of fact, and the trial court had refused to admit evidence pertaining to these issues, the Court of Appeal remanded for further proceedings.  The State of California then petitioned the California Supreme Court for review.

Rinehart cited to two federal land statutes in defending his criminal convictions: (1) the Mining Law of 1872 (30 U.S.C. § 22 et seq.), and (2) the Surface Resources and Multiple Use Act of 1955 (30 U.S.C. § 612).  The Supreme Court noted that these statues do not contain any express preemption provisions, do not occupy a relevant field that would foreclose state regulation, and do not impose obligations that would made it impossible to comply with both state and federal law simultaneously.  Instead, Rinehart’s preemption argument rested on what is commonly known as “obstacle preemption” – i.e., “the principle that a state may not adopt laws impairing ‘the accomplishment and execution of the full purposes and objectives of Congress.’”[12]  (Rinehart, supra, 1 Cal.5th at p. 660, quoting Hines v. Davidowitz (1941) 312 U.S. 52, 67, 61 S.Ct. 399, 85 L.Ed 581; accord, Quesada v. Herb Thyme Farms, Inc. (2015) 62 Cal.4th 298, 312.)

Although the California Supreme Court traditionally applied a “strong presumption against preemption in areas where the state has a firmly established regulatory role,” Rinehart contended that no such presumption should arise in this case because the state law was being used to regulate conduct on federal land – an area where congressional power is plenary.  (Rinehart, supra, 1 Cal.5th at pp. 661-662, citing to U.S. Const., art. IV, § 3, cl. 2.)  CDFW, on the other hand, argued that since the challenged state law involved subjects that were traditionally within the state’s regulatory purview, preemption was disfavored – even on federal land.  The Supreme Court decided it did not need to resolve this dispute, because with or without the presumption, it concluded that Rinehart had not carried his burden of “establishing congressional purposes and objectives that require California’s environmental regulations be displaced.”[13]  (Id. at p. 662.)

In discussing the Mining Law of 1872, the Court found that although many of its provisions generally involve mining and discuss the steps a citizen may take to acquire not only possession, but formal title in the form of a patented claim, the focus of the provisions is “considerably more specific – the delineation of the real property interest of miners vis-à-vis each other and the federal government.”  (Rinehart, supra, 1 Cal.5th at p. 663.)  “The discovery of a valuable claim is in every instance a condition for thereafter obtaining some possessory or fee simple interest in federal land [citations], but the act as a whole is devoted entirely to the allocation of real property interests among those who would exploit the mineral wealth of the nation’s lands, not regulation of the process of exploitation – the mining – itself. [Citations.].”  (Id.)

The Court also found that the property clause alone does not foreclose states from exercising their ordinary police powers on federal land, but rather, than Congress must act in that regard.  In noting California’s history of regulating mining within its borders, the Court stated the “1872 law is explicit concerning the effect of such past and future laws: it endorses their continuing vitality and prospectors’ ongoing obligations to abide by them.  Claimants are granted a right of possession ‘so long as they comply with the laws of the United States, and with State, territorial, and local regulations.’ [Citation.].”  (Rinehart, supra, 1 Cal.5th at p. 663.)  The Court went on to find that the 1872 law endorses local, rather than federal, control over the mining lands, and that express language in the law suggests “an apparent willingness on the part of Congress to let federal and state regulation broadly coexist, especially insofar as those state laws relate to matters other than a miner’s ‘possessory title.’ [Citation.].”  (Id. at pp. 663-664.)  In addition, the Court found that subsequent amendments also acknowledged that mining on federal lands had to be “done in an ‘orderly’ fashion, and account for ‘environmental needs’ and ‘any adverse impact’ on ‘the physical environment.’ [Citation.].”  (Id. at p. 664.)

After further examining the legislative history of the relevant federal mining laws, the Court stated:

From this history, we may infer Congress was concerned principally with

removing federal obstacles to mining, and specifically the threat of a property

sale, that might deter individual prospectors and mining concerns from

investing effort in mineral development. Granted a right to enter federal

land, the opportunity to obtain a right of possession, and the opportunity to

acquire ownership, miners could pursue mineral discovery and exploitation

free from the specter of having the land they worked sold at auction. In contrast,

the purpose Rinehart attributes to these laws – an intent to confer a right to

mine, immune in whole or in part from curtailment by regulation – is not

apparent.  The mining laws were neither a guarantee that mining would prove

feasible nor a grant of immunity against local regulation, but simply an

assurance that the ultimate original landowner, the United States, would not

interfere by asserting its own property rights.

(Rinehart, supra, 1 Cal.5th at p. 666.)

Notably, the Court agreed with Rinehart’s assertion that the 1872 law conferred specific property rights on him and other miners.  “Rinehart has an interest in land, a real property right to possess the area of his claim for particular purposes.”  (Rinehart, supra, 1 Cal.5th at p. 667, citing to Wilbur v. United States ex rel. Kruchnic (1930) 280 U.S. 306, 316-317, 50 S.Ct. 103, 74 L.Ed. 445, and Cole v. Ralph (1920) 252 U.S. 286, 295, 40 S.Ct. 321, 64 L.Ed. 567.)  However, pursuant to the legislative history of the law, the Court reiterated that this grant of a real property interest does not usually carry with it immunity from regulation, or a guarantee that the state’s police power will be inoperative with regard to the property interest simply because the source of the real property is federal.  (Id.)  The Court supported this interpretation of the 1872 law by pointing to the fact that in 1884, after the application of California law resulted in a de facto ban placed on a major industrial mining method, Congress expressly approved and helped enforce that ban. (Id., citing to People v. Gold Run D. & M. Co. (1884) 66 Cal. 138, and North Bloomfield Gravel Min. Co. v. U.S. (9th Cir. 1898) 88 F. 664.)  As a result, the Court found that Congress did not intend the 1872 Mining Law to preempt state laws regarding the use of particular mining methods.

Similarly, the Court found there was no basis for preemption under 30 U.S.C. § 612.  (Rinehart, supra, 1 Cal.5th at p. 672.)  The Court noted the law was enacted in 1955 as part of a “crack-down” on unauthorized uses of unpatented mining claims because Congress was concerned that some claims were being staked out as a pretext for activities unrelated to mineral development.  (Id.)  In addition, the Court found that under the law, Congress withdrew the traditional grant to claimants of exclusive use of the land encompassed by their claims, and replaced it with a right retained by the federal government to use, manage, and dispose of the surface resources. However, this retained right “was subject to the condition that the United States and other uses not ‘endanger or materially interfere with’ mining operations. [Citation.].”  (Id. at pp. 672-673.)

The Court then held: “Nothing in California’s regulation of suction dredging implicates or interferes with any of the purposes and objectives underlying this congressional reallocation of rights,” and that section 612 regulated “the respective property rights of miners with claims on federal land, on the one hand, and the United States and its permittees who may wish to use that same land for other purposes, on the other.  It does no more.”  (Rinehart, supra, 1 Cal.5th at p. 673.)  Regarding the “materially interfere” standard, the Court found it defined what the federal government could not do on the surface of mining claims, but it did not refer to what states could not do in the exercise of their police powers.  (Id.)

 

 

III.       Analysis

  1. Arguments of the Parties

In the wake of the Rinehart ruling, CDFW brings a motion entitled “Motion for Judgment on the Pleadings.”  According to CDFW, the Rinehart decision has three direct consequences on what remains of these coordinated cases: (1) a reversal by this court on its earlier MSJ/MSA ruling on preemption, (2) the lack of merit for some of the Miners’ arguments regarding their record-based claims, and (3) the Miners’ takings claims lack merit as a matter of law.

Regarding the first issue, the Miners do not dispute a reversal of this court’s MSJ/MSA preemption ruling.  As noted by CDFW, with regards to the Rinehart case, this court stated: “If the Supreme Court overturns the appellate court’s ruling on the federal preemption issue, then this court’s MSA/MSJ ruling must similarly be vacated.”  [Notice of Ruling, filed Jan 26, 2016.]

Regarding the second issue, CDFW contends the Miners’ three record-based claims must fail for reasons related to the preemption issue: (a) 30 U.S.C. § 612(b) does not apply to states, and therefore, cannot support the Miners’ argument that CDFW’s discussion of alternatives is flawed; (b) since sections 5653 and 5653.1 are not preempted, then it cannot be argued that CDFW did not give due consideration to federal law or that federal mining law preempts these 2012 regulations; and (c) since sections 5653 and 5653.1 are not preempted, it cannot be argued that CDFW did not have to complete an environmental review pursuant to the mandate in those statutes.

As for the Miners’ takings claim, CDFW argues that since the existence of a valid mining claim depends on compliance with all state laws, including those upheld in Rinehart, there cannot be a taking because it was found those state laws were not preempted by the federal mining law.  CDFW contends that the threshold argument in any takings case is whether the plaintiff has established a property interest.  (See, e.g., Colvin Cattle Co. v. United States (Fed. Cir. 2006) 468 F.3d 803, 806.)  CDFW notes that although the federal Constitution does not define property, the courts historically have looked to existing rules and background principles in federal, state, and common law to define the term.  However, CDFW also notes that an economic advantage or interest, without right in the law, is not such a property interest that is protected.  (See, Kaiser Aetna v. United States (1979) 444 U.S. 164, 178; Webb’s Fabulous Pharmacies, Inc. v. Beckwith (1980) 449 U.S. 155, 161.)

According to CDFW, the Miners’ property interest is not in real property, but rather, in their unpatented mining claims – claims which are a unique form of property that represent a possessory interest in the land, but not title to the land.  (See, Best v. Humboldt Placer Min. Co. (1963) 371 U.S. 334, 335-336.) CDFW notes that title to the land is still held by the federal government, but that the Miners’ property interests derive from 30 U.S.C. § 22 – a statute which provides for rights to exploration, occupation, and purchase of “valuable mineral deposits.”  However, CDFW contends that these rights are subject to “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.”  (30 U.S.C. §§ 22, 26.)  In pointing to this language, CDFW argues that the “regulations prescribed by law” includes state laws, and therefore, the Miners’ must comply with state law in asserting their respective mining claims – including the suction dredge mining laws.

CDFW also contends that in a takings claim regarding a federal mining claim, the plaintiff must prove he or she has a “valuable mineral deposit” – i.e., a “valid” claim.  According to CDFW, no rights attach to an invalid claim, and that since unpatented mining claims are more accurately characterized as “potential property interests,” then in order to prove a valid claim, the Miners must establish that they complied with all the procedural requirements for establishing a claim, and they must prove that said mining claim is “valuable.”  CDFW argues that in determining whether a federal mining claim is “valuable” – i.e., profitable – and therefore “valid,” the cost of compliance with all applicable federal and state laws is properly considered, and that compliance cannot be waived simply because said compliance would render the mining claim unprofitable.  (See, e.g., Independence Min. Co. v. Babbitt (9th Cir. 1997) 105 F.3d 502, 506-507.)

CDFW notes that in this litigation, the Miners claim that compliance with sections 5653 and 5653.1 eliminates “all economically beneficial or productive use” of their mining claims.  However, CDFW argues that compliance with the state law is part of the marketability test and prudent person test for determining whether there is a “valuable mineral deposit” on the land, and whether the mining claim is valid.  According to CDFW, under the Miners’ own theory of the case, they do not have any property interests in the land because their compliance with sections 5653 and 5653.1 renders their mining claims invalid.

In opposition, the Miners contend that CDFW’s argument runs afoul of the maxim that a “State cannot be permitted to defeat the constitutional prohibition against taking property without due process of law by the simple device of asserting retroactively that the property it has taken never existed at all.”  (Hughes v. Washington (1967) 389 U.S. 290, 296-297 (Stewart, J., concurring).)  According to the Miners, until CDFW instituted the ban on suction dredging, owners of unpatented mining claims reasonably expected they could extract the valuable minerals on the land through motorized operations mining – a method which supported high prices for their valuable claims.

The Miners argue that since CDFW does not admit it destroyed all economically beneficial uses of their mining claims – an admission which would make CDFW liable per se under the holding in Lucas v. South Carolina Coastal Council (1992) 505 U.S. 1003, then CDFW will likely rely on the multi-factor test in Penn Central Transportation Co. v. City of New York (1978) 438 U.S. 104.  However, according to the Miners, the Penn Central analysis is not proper upon judgment on the pleadings it is a factual inquiry designed to allow for examination and weighing of all the relevant circumstances.  Moreover, the Miners note that the second factor of the Penn Central test – i.e., a consideration of the “extent to which the regulation has interfered with distinct investment-backed expectations” – emphasizes the constitutional protection against retroactive destruction of property rights after the imposition of the challenged regulation. The Miners argue they had legitimate investment-backed expectations with regards to their mining claims, and those expectations were destroyed by arbitrary action by the State.

The Miners further contend all California property owners hold their property “under regulations prescribed by law,” and that the purpose of the takings law is to compensate the property holder when the state exercises its regulatory power to destroy the value of certain private property for an asserted public benefit.  According to the Miners, CDFW misconstrues takings law in arguing that only persons with valid property interests at the time of taking are entitled to compensation.  Instead, the Miners argue that courts have held that after discovery of a valuable mineral deposit upon a properly located unpatented mining claim, the locater has a property right “in the full sense” – a right which is within the protection of the Constitution’s prohibition against the taking of private property for public use without just compensation.

Furthermore, the Miners contend CDFW misconstrues federal mining law as well.  According to the Miners, 30 U.S.C. § 22 does not make any reference to state law, but rather, in conjunction with other provisions, refers to particular state rules for obtaining and holding title to a mining claim.  In addition, the Miners argue that no state, including California, has attempted to declare that the mining claims “shall be void” based on the degree of compliance with the regulations governing mining claims.  The Miners assert that once ownership of a mining claim is perfected, it cannot be destroyed by the state regulation of mining operations.  Moreover, the Miners contend only the federal government has standing to initiate validity contests with regards to mining claims.  Nevertheless, the Miners argue all that is required in this procedural posture is that they demonstrate they had valuable property until it was taken by CDFW.

  1. Merits of the Motion – Takings Cause of Action

Judgment on the Pleadings.   As noted above, CDFW purports to present this motion as a judgment on the pleadings.  A motion for judgment on the pleadings may be made by any party to the action after the time to demurrer has expired.  (Code Civ. Proc., §438(b)(1) and (f); Evans v. California Trailer Court, Inc. (1994)28 Cal.App.4th 540, 548.)  Essentially a motion for judgment on the pleading performs the same function as a general demurrer, and thus attacks only the defects disclosed on the face of the pleading or by matters that are judicially noticed.  (Cloud v. Northrop Grumman Corp. (1998)67 Cal.App.4th 995, 999.)  As such, the judgment on the pleading admits the truth of all material facts.

The grounds for a motion for judgment on the pleading shall appear on the face of the challenged pleading or from any matter of which the court is required to take judicial notice.  (Code Civ. Proc., §438(d).)  A court may also take judicial notice of something that cannot reasonably be controverted, even if it negates an express allegation of the pleading.  (Evans, supra, 28 Cal.App.4th 540 at 549.)

If the moving party is the defendant, then a motion for judgment on the pleadings is limited to the grounds that the court has no jurisdiction over the subject of the cause of action alleged in the complaint or the complaint does not state facts sufficient to constitute a cause of action against the defendant.  (Code Civ. Proc., §438(c)(1)(B).)  If the moving party is the plaintiff, then the motion can be made on the ground that the complaint states facts sufficient to constitute a cause of action against the defendant and “the answer does not state facts sufficient to constitute a defense to the complaint.”  (Code Civ. Proc., §438(c).)

Here, in the current litigation, therefore, this motion only presents the question of whether the Miners have stated sufficient facts to constitute their causes of action.

Takings Clause.  The Fifth Amendment of the United States Constitution prohibits the government from taking private property for public use without just compensation.  (U.S. Const., 5th Amend.)  Specifically, the Fifth Amendment “‘does not prohibit the taking of private property, but instead places a condition on the exercise of that power.’  [Citation.]  In other words, it ‘is designed not to limit the governmental interference with property rights per se, but rather to secure compensation in the event of otherwise proper interference amounting to a taking.’”  (Lingle v. Chevron U.S.A., Inc. (2005) 544 U.S. 528, 536-537, 125 S.Ct. 2074, 161 L.Ed.2d 876 (Lingle).)  As a result, the takings clause precludes the “‘[g]overnment from forcing some people alone to bear public burdens which, in all fairness and justice, should be borne by the public as a whole.’”  (Ibid.)

“‘The paradigmatic taking requiring just compensation is a direct government appropriation or physical invasion of private property.’ [Citation.]  However, courts have long recognized that ‘governmental regulation of private property may, in some instances, be so onerous that its effect is tantamount to a direct appropriation or ouster – and that such “regulatory takings” may be compensable under the Fifth Amendment.’ [Citations.]”  (Lockaway Storage v. County of Alameda (2013) 216 Cal.App.4th 161, 183, quoting Lingle, supra, 544 U.S. at p. 537, 125 S.Ct. 2074; see also, Kavanau v. Santa Monica Rent Control Bd. (1997) 16 Cal.4th 761, 773 (Kavanau).)  The United States Supreme Court confirmed “that a regulation may effect a taking requiring just compensation even if it does not deprive the owner of ‘all economically beneficial use’ of his or her property, depending on the particular circumstances of the case.”  (Lockaway, supra, 216 Cal.App.4th at pp. 183-184, citing to Palazzolo v. Rhode Island (2001) 533 U.S. 606, 617, 121 S.Ct. 2448, 150 L.Ed.2d 592.)  The United States Supreme Court has also held that “a temporary regulatory taking may require payment of just compensation for the period the taking was in effect.”  (First Lutheran Church v. Los Angeles County (1987) 482 U.S. 304, 321, 107 S.Ct. 2378, 96 L.Ed.2d 250.)

The federal takings clause applies to the states via the Fourteenth Amendment of the Constitution.  (Chicago, Burlington & Q. R’D v. Chicago (1897) 166 U.S. 226, 234, 17 S.Ct. 581, 41 L.Ed. 979.)  Takings, or inverse condemnation, claims also arise under Article I, section 19 of the California Constitution, which provides “[p]rivate property may be taken or damaged for a public use and only when just compensation … has first been paid to … the owner.” (Cal. Const., art. I, § 19, subd. (a); see Regency Outdoor Advertising, Inc. v. City of Los Angeles (2006) 39 Cal.4th 507, 516.)  “[R]ead as a whole, the ‘just compensation’ clause is concerned, most directly, with the state’s exercise of its traditional eminent domain power ….”  (Customer Co. v. City of Sacramento (1995) 10 Cal.4th 368, 376–380.)  The takings clause in the California Constitution is “construed congruently with the federal clause.”  (Lockaway Storage v. County of Alameda (2013) 216 Cal.App.4th 161, 183, citing to Shaw v. County of Santa Cruz (2008) 170 Cal.App.4th 229, 260.)

Whether the government’s actions constitute a taking is a mixed question of law and fact, and as a result, judicial review is neither entirely de novo nor entirely limited by the substantial evidence rule.  (Lockaway Storage v. County of Alameda (2013) 216 Cal.App.4th  161, 183.)  “A regulatory takings analysis rests on the foundational principle that ‘while property may be regulated to a certain extent, if regulation goes too far it will be recognized as a taking.’”  (Lockaway, supra, 216 Cal.App.4th at p. 184, quoting Penna. Coal Co. v. Mahon (1922) 260 U.S. 393, 415, 43 S.Ct. 158, 67 L.Ed. 322.)

In determining “how far is ‘too far,’” courts should examine three distinct categories of regulatory takings, and the tests for evaluating each category.  (Lockaway, supra, 216 Cal.App.4th at p. 184, citing to Lingle, supra, 544 U.S. at p. 538.)  The first category is government action which requires a property owner to “suffer a permanent physical invasion” of his or her property.  (Ibid.) “The second category includes regulatory conduct that does not result in any physical invasion but deprives the owner of ‘all economically beneficial use’ of the property.  [Citation.]  These two ‘relatively narrow categories’ of regulatory action are subject to a categorical rule and are deemed per se takings for Fifth Amendment purposes.  [Citation.]”  (Lockaway, supra, 216 Cal.App.4th at p. 184.)

As a preliminary matter, it should be noted that regulatory taking cases have not clearly defined “substantially all economic value.”  However, in Lucas v. South Carolina Coastal Council (1992) 505 U.S. 1003, 112 S.Ct. 2886, 120 L.Ed.2d 798 (Lucas), the United States Supreme Court alludes to the fact that it is an “extraordinary circumstance when no productive or economically beneficial use of land is permitted …,” and it is a “relatively rare situation[] where the government has deprived a landowner of all economically beneficial uses.”  (Lucas, supra, 505 U.S. at pp. 1017, 1018.)

Nevertheless, a complete deprivation of all economically beneficial uses is not a prerequisite to a finding of a regulatory taking.  Indeed, in Lucas, the United States Supreme Court expressly rejected the “assumption that the landowner whose deprivation is one step short of complete is not entitled to compensation.”[14]  (Lucas, supra, 505 U.S. at p. 1019, fn. 8, 112 S.Ct. at p. 2395, fn. 8.)  Similarly, in citing to Lucas, the California Supreme Court, in dicta, found that “[a] regulation, …, may effect a taking though, …, it does not involve a physical invasion and leaves the property owner some economically beneficial use of his property.”  (Kavanau v. Santa Monica Rent Control Board (1998) 16 Cal.4th 761, 774, emphasis in original.)  However, the categorical rule in Lucas is that compensation is required when a regulation permanently deprives an owner of “all economically beneficial uses” of his land.  (Lucas, supra, 505 U.S. at p. 1019, 112 S.Ct. 2886; see also, Tahoe-Sierra Preservation Council, Inc. v. Tahoe Reg’l Planning Agency (2002) 535 U.S. 302, 122 S.Ct. 1465 (Tahoe-Sierra) [compensation not owed because temporary moratorium was not a permanent ban on development].)

In Tahoe-Sierra, supra, the United States Supreme Court distinguished Lucas in its examination of a temporary moratorium on the development of environmentally sensitive lands.  The Court held that under the categorical rule applied in Lucas, “a statute that ‘wholly eliminated the value’ of Lucas’ fee simple title clearly qualified as a taking.  But our holding was limited to ‘the extraordinary circumstance when no productive or economically beneficial use of land is permitted.’”  (Tahoe-Sierra, supra, 535 U.S. at pp. 330-332, 122 S.Ct. 1465, citing to Lucas, supra, 505 U.S. at p. 1017, 112 S.Ct. 2886  [that the 32-month moratorium was not a permanent ban on development, but only a fraction of the useful life of the properties affected].)  The Tahoe-Sierra Court went on to note that in Lucas, they explained “that the categorical rule would not apply if the diminution in value were 95% instead of 100%,” and that “[a]nything less than a ‘complete elimination of value,’ or a ‘total loss,’ … would require the kind of analysis applied in Penn Central.”  (Tahoe-Sierra, supra, 535 U.S. at p. 330, 122 S.Ct. 1465, quoting Lucas, supra, 505 U.S. at pp. 1019-1020, fn. 8, 112 S.Ct. 2886.)

Accordingly, if a regulatory taking does not fall into one of the first two categories, then it is evaluated under a set of standards first articulated by the United States Supreme Court in the seminal case of Penn Central Transportation Co. v. City of New York (1978) 438 U.S. 104, 98 S.Ct. 2646, 57 L.Ed.2d 631 (Penn Central).  (Lockaway, supra, 216 Cal.App.4th at p. 184, citing to Lingle, supra, 544 U.S. at p. 538, 125 S.Ct. 2074.)

Under Penn Central, the court is to engage is an “ad hoc factual inquiry that weighs ‘several factors for evaluating a regulatory taking claim.’”  (Lockaway, supra, 216 Cal.App.4th at p. 184, citing to Penn Central, supra, 438 U.S. at p. 124, 98 S.Ct. 2646; Lingle, supra, 544 U.S. at p. 538, 125 S.Ct. 2074.)  The inquiry involves three primary factors: “(1) the ‘economic impact’ of the regulation on the claimant, (2) the extent to which the regulation interfered with ‘distinct investment-backed expectations,’ and (3) the ‘character of the governmental action.’”  (Lockaway, supra, 216 Cal.App.4th at p. 184, citing to Shaw v. County of Santa Cruz (2008) 170 Cal.App.4th 229, 272; see, Penn Central, supra, 438 U.S. at p. 124, 98 S.Ct. 2646.)  These Penn Central factors have been deemed “the principal guidelines” for resolving regulatory takings claims that do not fall under the two narrow categories of per se takings claims.  (Lockaway, supra, 216 Cal.App.4th at p. 184, citing to Lingle, supra, 544 U.S. at p. 539, 125 S.Ct. 2074.)

Under the Penn Central inquiry, the question is not “whether a regulation of private property is effective in achieving some legitimate public purpose” – i.e., it is not a “means-ends test”.  (Lockaway, supra, 216 Cal.App.4th at p. 185, citing to Lingle, supra, 544 U.S. at p. 542, 12 S.Ct. 2074.)  “Instead, the goal is to assess the ‘magnitude or character of the burden a particular regulation imposes upon private property rights’ in order to determine whether its effects are ‘functionally comparable to government appropriation or invasion of private property.’”  (Lockaway, supra, 216 Cal.App.4th at p. 185 [emphasis in original].)

Reoforce and Application of Penn Central Factors.  The recent case of Reoforce, Inc. v. United States (Fed. Cir. 2017) 853 F.3d 1249, is instructive.  In Reoforce, the owners of unpatented mining claims filed suit alleging that the federal Department of Interior’s Bureau of Land Management (“BLM”) effected a regulatory taking of their mining claims when BLM entered into a memorandum of understanding (“MOU”) regarding the potential transfer to California of federal land encompassing the mining claims until the date that BLM entered a settlement agreement which granted the owners mining rights on three mining claims.  The case also was based on the 1972 Mining Law.

In Reoforce, the claimant found high quality pumicite deposits in Kern County, California, and in 1983, he located 21 mining claims in his name.  Subsequently, after finding two more mining claims, he and his wife did business as Reoforce.  For more than two decades, the claimant investigated the material properties of pumicite to find commercial applications, and he ultimately received several technical studies indicating the promise of various commercial uses of the mineral.  In 1987, pursuant to the applicable regulations, the claimant submitted a plan of operations to BLM for his company to mine several thousands of tons of pumicite per year from his mining claims.  After further clarification and testing, BLM conditionally approved the plan.  The conditional approval included 20 stipulations, including that the pumicite not be subject to location under the General Mining Laws, and that a determination be made at an unspecified time.  Although BLM had not yet determined whether the claimant had discovered valuable minerals locatable under the General Mining Law, BLM allowed the claimant to proceed with his mining plans.  However, despite assurances by BLM, the claimant decided to postpone the start of his mining operations until after BLM completed its common/uncommon variety determination.  Two years later, BLM concluded that pumicite was an uncommon mineral locatable under federal law.  A few months later, the company’s plan of operations was approved.  The claimant began mining operations, but of the 200 tons he mined, only five were sold.  (Reoforce, supra, 853 F.3d at pp. 1258-1259.)

In 1995, the claimant was notified that the lands encompassing his mining claims would be transferred to the State of California under the California Desert Protection Act to become part of a state park.  The notice explained that some mining claimants may have valid rights that would survive the transfer, but that these rights were predicated on the discovery of a valuable mineral deposit within the claim.  This notice was attached to a memorandum of understanding (“MOU”) between BLM and the California Parks and Recreation Department, and the purpose of the MOU was to provide for the management and administration of the lands within the state park that were not conveyed to the department because they were encumbered by unpatented mining claims.  Specifically, the MOU allowed some mining claimants to continue their operations while it suspended the operations of other claimants, depending on the claimants’ use of the mine before the MOU.  BLM explained the ultimate fate of these claims depended on the outcome of a valid existing rights determination, and that unpatented claims ultimately judged invalid would transfer to the State.  (Reoforce, supra, 853 F.3d at p. 1259.)

Several months later, BLM sent the claimant a letter regarding California’s Surface Mining and Reclamation Act (“SMARA”), stating it applied to his mining claims and he had to submit a reclamation plan in compliance with the Act.  However, although Reoforce discussed expanding its mining operations, the venture failed due to lack of commercial orders.  Six years later, the company was reactivated, and the claimant notified BLM that he intended to resume his mining operations.  The following year, the claimant sent BLM a letter stating that Reoforce had satisfied the requirements of SMARA, and that in waiting for the approval, he had been hindered in his mining operations.  One year later, BLM initiated a validity determination to consider whether claimant’s claims were valid under the mining law, and the investigation concluded two years later with a report finding the claims invalid.  (Reoforce, supra, 853 F.3d at p. 1260.)

After the Department of Interior initiated a proceeding seeking a declaration that the mining claims were invalid, and that the United States owned the property free of any mining claims, the department ultimately settled the contest with Reoforce.  In the settlement agreement, the parties agreed that Reoforce would relinquish its rights in 20 of the 23 disputed mining claims.  However, on the three remaining claims, Reoforce was granted rights to mine in accordance with its plan of operations, subject to conditions.  The conditions required the company to begin mining operations within 24 months of the settlement agreement, and not to cease operations for any continuous period of 12 months.  In 2011, Reoforce filed a complaint in the Court of Federal Claims seeking just compensation for an alleged temporary taking from 1995 to 2008 of the three mining claims it retained.  Reoforce alleged that, although it was not engaged in diligent and continuous mining, it had been on the cusp of significant mining operations in 1995, but that the 1995 MOU had forced it to cease operations under the settlement agreement and the close of the validity determination in 2008.  Reoforce asserted this cessation of operations was a temporary regulatory taking of its property rights compensable under the Fifth Amendment.  The court found Reoforce failed to establish its allegations on three grounds: (1) Reoforce did not have a compensable property right in 1995, (2) even if Reoforce had a property right at the time of the alleged taking, the MOU did not prohibit Reoforce from mining, and (3) even assuming the MOU prohibited Reoforce from mining, Reoforce did not establish that the MOU interfered with its reasonable investment-backed expectations under the Penn Central analysis.  Reoforce appealed.  (Reoforce, supra, 853 F.3d at pp. 1261-1262.)

As a preliminary matter, the appellate court found that an unpatented mining claim is a conditional property interest, and that the holders of these claims “ ‘take their claims with the knowledge that the Government, as owner of the underlying fee title, maintains broad regulatory powers over the use of the public lands on which unpatented mining claims are located.’”  (Reoforce, supra, 853 F.3d at p. 1256, quoting Kunkes v. United States (Fed. Cir. 1996) 78 F.3d 1549, 1553.)  Nevertheless, the court found that such unpatented mining claims are property protected by the Fifth Amendment against uncompensated takings.  (Reoforce, supra, 853 F.3d at p. 1256.)

Next, the appellate court found that the MOU did not, in fact, prevent Reoforce from mining on its claim.  Nevertheless, the court stated that even if the MOU prevented Reoforce from mining, Reoforce did not prove that this temporary prohibition on mining constituted a taking under Penn Central.  (Reoforce, supra, 853 F.3d 1266.)  On this point, the court held that deprivation of a property right, even if temporary, may merit just compensation under the takings clause.  “ ‘[O]nce a court finds that a police power regulation has effected a “taking,” the government entity must pay just compensation for the period commencing on the date the regulation first effected the “taking,” and ending on the date the government entity chooses to rescind or otherwise amend the regulation.’”  (Reoforce, supra, 853 F.3d at p. 1268, quoting Tahoe-Sierra Pres. Council, Inc., supra, 535 U.S. at p. 328.)

However, the court noted that temporary interference with a property right may not amount to a taking because a temporary restriction that merely causes a diminution in value is not a taking of the parcel as a whole.  (Reoforce, supra, 853 F.3d at pp. 1268-1269.)  “[T]he answer to the abstract question whether a temporary moratorium effects a taking is neither ‘yes, always’ nor ‘no, never’; the answer depends upon the particular circumstances of the case.”  (Id., quoting Tahoe-Sierra, 535 U.S. at p. 332.)  The court explained that those circumstances must be tested under the Penn Central analysis.  (Id.)

CDFW Motion.  As noted above, after the extensive procedurally history of this matter, CDFW has decided to make its post-Rinehart arguments under the guise of a motion for judgment on the pleadings.  In this procedural posture, CDFW must demonstrate that the Miners have not alleged sufficient facts to constitute their causes of action.  However, in their Amended Complaint and Petition for Writ of Mandate, filed March 13, 2013, the Miners set fort the following allegations:  (1) the only practicable method of removing present underwater gold deposits is through suction dredge mining [FAC, ¶¶21, 53]; (2) for many years, CDFW issued permits for suction dredging under section 5653 et seq. [FAC, ¶23]; (3) CDFW has recently instituted statutory moratoriums and a new set of suction dredging regulations which have banned suction dredge mining in California [FAC, ¶¶24, 25]; (4) the mining claims are located, in whole or in part, in areas identified as “Closed Areas” where suction dredge mining is prohibited under the new regulations [FAC, ¶¶32, 33]; (5) no suction dredge permits can be issued because CDFW cannot certified the requisite conditions under the law [FAC, ¶35]; (6) the regulations will not permit suction dredge mining on the mining claims and/or will operate to forbid suction dredge mining for those mining claimants who are not able to obtain one of the 1500 annual permits [FAC, ¶36]; (7) the mining claims are private property protected under the Fifth and Fourteenth Amendments to the U.S. Constitution [FAC, ¶52]; (8) the mining claims are not valuable for any other purpose other than mining, and the Miners’ property rights are limited to prospecting, mining, or processing operations related to gold mining [FAC, ¶ 54]; (9) the Miners are denied all economically beneficial or productive use of their respective mining claims due to the regulations [FAC, ¶ 55]; and (10) the Miners have not received any compensation for the taking of their mining claims by CDFW [FAC, ¶¶ 56, 57].

CDFW has not demonstrated that these allegations are not sufficient to state the Miners’ takings cause of action.  Indeed, CDFW seems to primarily rest its argument on the Supreme Court’s Rinehart decision.  However, as discussed thoroughly above, while the Rinehart decision clearly stated that sections 5653 and 5653.1 are not federally preempted, the opinion does not address the question of whether the State’s statutory scheme amounted to a regulatory taking of the Miners’ mining claims.  Moreover, as noted in the recent Reoforce opinion, whether a temporary moratorium amounts to a taking under the Fifth Amendment is a question that must be viewed through a Penn Central analysis – an analysis which is not amenable to the procedural restrictions of a motion for judgment on the pleadings.

 

In addition, CDFW’s argument is based on the question of whether the Miners have a “valid” property interest in their mining claims – a question which is more conducive to a summary judgment or writ hearing, not a motion for judgment on the pleadings.  Nevertheless, as noted in Reoforce, unpatented mining claims are property protected by the Fifth Amendment against uncompensated takings.  (Reoforce, supra, 853 F.3d at p. 1256.)

Other courts have similarly held that an unpatented mining claim “‘is a property right in the full sense, …,’ and constitutes a property interest ‘which is within the protection of the Fifth Amendment’s prohibition against the taking of private property for public use without just compensation.’ [Citations.]”  (McKown v. United States (E.D. Cal. 2012) 908 F.Supp.2d 1122, 1124.)  It is well-settled that a mining claim’s validity is dependent upon the discovery of a valuable mineral deposit.  (See, id. at p. 1125, citing to 30 U.S.C. § 22.)  “‘[T]o qualify as valuable mineral deposits, the discovered deposits must be of such character that a person of ordinary prudence would be justified in the further expenditure of his labor and means, with a reasonable prospect of success, in developing a valuable mine.’”  (Id., quoting United States v. Coleman (1968) 390 U.S. 599, 602, 88 S.Ct. 1327, 20 L.Ed.2d 170.)  In this “prudent man test,” profitability of the claim must be considered.  (See, Hjelvik v. Babbitt (9th Cir. 1999) 198 F.3d 1072, 1074, citing to Coleman, supra, 390 U.S. at 602, 88 S.Ct. 1327.)

However, when the government contests the validity of a mining claim, the government bears the burden of establishing a prima facie case that the claim is invalid. (McKown, supra, 908 F.Supp.2d at p. 1125, citing to Hjelvik, supra, 198 F.3d at pp. 1074-1075.)  Here, in the current action, CDFW has not met that burden.  Indeed, CDFW improperly asserts that the Miners’ unpatented mining claims are invalid, in part, because such claims are only possessory interests, and are not title to the land in question.  Yet, as discussed in Reoforce, while an unpatented mining claim is a conditional property interest subject to the federal government’s ownership of the underlying land, it is nonetheless a compensable property interest under the takings law.  (Reoforce, supra, 853 F.3d at p. 1256.)

As for whether the mining claims are “valuable,” CDFW also seems to rest its analysis on whether the claimant has complied with all state and federal laws.  However, as alleged in the operative pleading, suction dredging permits were issued for several years under the previous statutory scheme, and were only prohibited after the statutes were amended in 2009.  As a result, to the extent the mining claims at issue were instituted prior to 2009, CDFW cannot claim ex post facto that the 2009 regulations rendered those mining claims invalid because they were no longer “valuable” – i.e., profitable.

CDFW has not met its burden with regards to this motion.  Accordingly, the motion for judgment on the pleadings is denied as to the takings cause of action.

  1. CEQA and APA Claims

Neither of the parties adequately addresses the remaining CEQA and APA claims.  Indeed, as noted above, after CDFW finalized the 2012 FSEIR, the Legislature required CDFW to submit a report and recommendations regarding statutory changes or authorizations that CDFW thought were necessary to develop the suction dredge regulations.  In April 2013, CDFW provided the requisite report and recommendations.  In response, the Legislature enacted S.B. No. 637 which, in part, addressed the “significant and unavoidable” environmental effects identified by CDFW.  (Stats. 2015, ch. 680.)

Although the amendment became effective as of January 1, 2016, and substantially amended section 5653, neither of the parties discusses its effects on the remaining issues in this action.  Yet the amendment seems to have lifted the complete moratorium on suction dredge mining, and has resulted in the following changes to the statutory scheme for the issuance of suction dredge mining permits: [15]

  1. Prohibits CDFW from issuing a permit for vacuum or suction dredge mining until the permit application is complete;
  2. Expands the definition of suction dredge mining to include other methods of small-scale gold mining, and requires permits issued by CDFW and the State Water Resources Control Board (hereinafter, “Water Board”), a regional board, or the U.S. Army Corps of Engineers for those activities;
  3. Requires that the application include copies of all required permits, including permits required under the Federal Water Pollution Control Act, the California Water Code, and any other permit required to fully mitigate all identified significant environmental impacts;
  4. Requires, if the Water Board or regional water quality control board determines that no water quality or water rights permit is necessary, that the application include a letter stating that determination;
  5. Requires CDFW to issue the permit if it determines that use of a vacuum or suction dredge does not cause any “significant effects to fish and wildlife”;
  6. Provides that a permit issued by CDFW for suction dredge mining shall not authorize any activity in violation of any other applicable requirements, conditions, or prohibitions governing the use of suction dredge equipment, including those adopted by the Water Board or a regional board;
  7. Authorizes the Water Board or a regional board to protect water quality by adopting waste discharge requirements that address the water quality impacts of mercury loading, methylmercury formation, bioaccumulation of mercury in aquatic organisms, and resuspension of metals due to suction dredging; specifying conditions or areas where the discharge of waste or other adverse impacts on the beneficial uses of the waters of the state from suction dredge mining is prohibited; and prohibiting any particular methods of suction dredge mining that exceeds water quality objectives or unreasonably impacts beneficial uses.

(Stats. 2015, ch. 680, § 2 [amending F&G Code § 5653, subds. (b), (c), (d)(2), (g); Stats. 2015, ch. 680, § 4.)

 

Moreover, as with the takings cause of action, the remaining issues regarding the CEQA and APA claims, the effect of Rinehart on these causes of action, and the effect of the amended statutes cannot be addressed in a motion for judgment on the pleadings.  As discussed above, contrary to the position seemingly taken by CDFW, the Rinehart decision, though consequential on the issue of preemption, did not address issues dispositive to the CEQA and APA claims such that they should be dismissed on the pleadings.  Accordingly, the motion is denied as to the CEQA and APA causes of action.

 

Rulings

  1. The Court denies the Department of Fish and Wildlife’s Motion for Judgment on the Pleadings regarding the Takings Cause of Action, on the ground that CDFW has not met its burden of demonstrating that the cause of action is not adequately alleged, or that the underlying mining claims are invalid.
  2. The Court denies the Department of Fish and Wildlife’s Motion for Judgment on the Pleadings regarding the CEQA and APA causes of action, on the ground that CDFW has not met its burden of demonstrating that these causes of action are not adequately alleged.
  3. The Court grants the Department of Fish and Wildlife’s Motion for Judgment on the Pleadings to the extent it seeks an order vacating this court’s earlier MSJ/MSA ruling on the issue of preemption due to the Rinehart decision in effect denying the MSJ/MSA brought by Plaintiffs.

 

 

 

 

 

 

 

Motion:           Motion for Summary Judgment (Single Subject)

                       

Movant:          Plaintiffs/Petitioners Derek Eimer, Stephen Jones, David Guidero, Marvin Lampshire II, and Dyton Gilliland

 

Respondent:   Defendant/Respondent California Department of Fish & Wildlife

 

PROCEDURAL/FACTUAL BACKGROUND

On July 6, 2015, Plaintiffs/Petitioners The New 49’ers, Inc., Derek D. Eimer, Stephen Jones, David Guidero, Marvin Lampshire II, and Dyton Gilliland (collectively, “Eimer Plaintiffs”) filed a putative class action Complaint and Petition, Case No. CIVDS 1509427, against Defendants/Respondents California Department of Fish & Wildlife, and Charlton H. Bonham, in his capacity as Director of the Department (collectively, “CDFW”).  In the Complaint and Petition, the Eimer Plaintiffs alleged causes of action for Violation of the One Subject Rule, and Federal Preemption.  Shortly thereafter, the Eimer litigation was coordinated with the ongoing Suction Dredge Mining Cases, JCPDS 4720.

On August 24, 2015, the Eimer Plaintiffs filed the operative First Amended Complaint and Petition, wherein they set forth class action allegations and a single cause of action for Violation of the One Subject Rule.  The Eimer Plaintiffs allege that the legislative predicate to Fish & Game Code sections 5653 and 5653.1 – Senate Bill No. 1018 (“SB 1018”) and Assembly Bill No. 120 (“AB 120”) – are unconstitutional because they violate Article IV, § 9 of the California Constitution, in that these bills embrace more than one subject.  As a result, the Eimer Plaintiffs seek a writ of mandate prohibiting and enjoining CDFW from enforcing SB 1018 and AB 120, and compelling CDFW to resume issuing permits for suction dredge mining.  In addition, the Eimer Plaintiffs seek to restrain and enjoin CDFW from citing, arresting, harassing, seizing the equipment of, or otherwise taking any action against those who are suction dredge mining without a permit, but otherwise in compliance with the 2012 regulations.

On November 10, 2015, the Eimer Plaintiffs filed the current Motion for Summary Judgment.  Plaintiff Keith Walker has filed a joinder in support.  In response, CDFW has filed a singular brief opposing the summary judgment motion, and supporting its cross-motion for Judgment on the Pleadings.[16]  To date, the Eimer Plaintiffs have not replied.

DISCUSSION

  1. Procedural Issues

On January 6, 2016, CDFW filed a combined brief entitled, “Defendants’ Brief on Single Subject Claims in Opposition to Plaintiffs’ Motion for Summary Judgment and in Support of Defendants’ Cross-Motion for Judgment on the Pleadings.”  CDFW also filed the requisite Notice of Motion and Motion for Judgment on the Pleadings, as well as an opposing separate statement with regards to the summary judgment motion, and a combined Request for Judicial Notice for both its opposition to the MSJ and its cross-motion.

Request for Judicial Notice

  1. Eimer Plaintiffs’ Request

The Eimer Plaintiffs ask this Court to take judicial notice of the following documents pursuant to Evidence Code sections 451 and 452:

  1. Exhibit 1 – Senate Bill No. 670, Chapter 62, filed with Secretary of State August 6, 2009;
  2. Exhibit 2 – Assembly Bill No. 120, Chapter 133, filed with the Secretary of State July 26, 2011;
  3. Exhibit 3 – Senate Bill No. 1018, ;
  4. Exhibit 4 – CDFW Report to the Legislature Regarding Instream Suction Dredge Mining Under the Fish and Game Code, dated April 1, 2013;
  5. Exhibit 5 – Senate Bill No. 637, Chapter 680, filed with Secretary of State October 9, 2015.

“Judicial notice is the recognition and acceptance by the court, for use by the trier of fact or by the court, of the existence of a matter of law or fact that is relevant to an issue in the action without requiring formal proof of the matter.”  (Lockley v. Law Office of Cantrell, Green, Pekich, Cruz & McCort (2001) 91 Cal.App.4th 875, 882.)  A request for judicial notice of published material is unnecessary.  Citation to the material is sufficient.  (Quelimane Co. v. Stewart Title Guaranty Co. (1998) 19 Cal.4th 26, 46, fn.9.)

California Evidence Code section 452(c) states that judicial notice may be taken of “[o]fficial acts of the legislative, executive, and judicial departments of the United States and of any state of the United States.”  Section 453 provides that judicial notice shall be taken of any matter specified in Section 452 if requested, if each adverse party is given sufficient notice of the request, and if the court is given sufficient information to enable it to take judicial notice of the matter.

The Eimer Plaintiffs contend these are official documents and/or memorialize official acts taken by various government entities.  Pursuant to the discussion above, the request is granted as to Exhibits 1 through 5.

  1. CDFW’s Request

CDFW asks this Court to take judicial notice of the following, pursuant to Evidence Code sections 451 and 452:

  1. Exhibit A – Copy of the decision in Hillman v. Department of Fish and Game, 2011 WL 6820380;
  2. Exhibit B – Senate Bill 637 (Stat. 2015, ch. 680), as enrolled, which was signed by the Governor on October 9, 2015.

As noted above, California Evidence Code section 452, subdivision (c) allows courts to judicially notice official legislative acts.  Subdivision (d), states that judicial notice may be taken of “[r]ecords of (1) any court of this state or (a) any court of record of the United States and of any state of the United States.”

In the case of court records, not all matters contained therein (e.g., pleadings, affidavits, etc.) are indisputably true.  While the existence of any document in a court file may be judicially noticed, the truth of matters asserted in such documents – including the factual findings of the judge who was sitting as the trier of fact – is not necessarily subject to judicial notice unless the document is an order, statement of decision, or judgment.  (Sosinsky v. Grant (1992) 6 Cal.App.4th 1548, 1564-1569.)  “It is the consequence of judicial notice that the ‘fact’ noticed is, in effect, treated as true for purposes of proof.”  (Sosinsky, supra, at p. 1564.)  Courts may not take judicial notice of allegations in affidavits or declaration because such matters are reasonably subject to dispute, and therefore require formal proof.  (See, e.g., Magnolia Square Homeowners’ Assn. v. Safeco Ins. Co. (1990) 221 Cal.App.3d 1049, 1056-1057.)

Pursuant to the above, CDFW’s request is granted in its entirety.

  1. Undisputed, Disputed, and Additional Material Facts

The Eimer Plaintiffs submitted four material facts in their Separate Statement (“UFs”).  In opposition, CDFW disputed the facts proffered by the Eimer Plaintiffs, but did not submit any additional material facts.

The Eimer Plaintiffs state that they are suction dredge miners who are prevented from mining by CDFW’s refusal to issue permits. [UF #1.] They go on to state that an important reason CDFW refuses to issue such permits is because CDFW has not certified regulations that fully mitigate all so-called significant adverse impacts, as required by SB 1018 and AB 120, and both bills embraced more than one subject. [UF Nos. 2-4.]

CDFW disputes, and states that the Eimer Plaintiffs’ facts are vague  and not supported by the cited evidence. CDFW further disputes, and states that since the explicit and single subject of both AB 120 and SB 1018 is “public resources”, suction dredge mining, along with the bills’ other provisions, is within that subject.

III.       Analysis

As noted above, pursuant to AB 120 (effective 7/26/11), SB 1018 (effective 6/27/12), and F&G Code § 5653.1, a conditional proscription against vacuum and suction dredging activities was enacted.  Under section 5653.1, suction dredge mining was prohibited until CDFW certified it had completed environmental review of its regulations, promulgated new regulations that fully mitigated all identified significant environmental effects, made the new regulations operative, and put a fee structure in place to cover the administrative costs of the suction dredge permit program. (F&G Code, § 5653.1, subd. (b).)

 

The Eimer Plaintiffs contend that AB 120 and SB 1018 are unconstitutional, and therefore, Section 5653.1 cannot continue to operate as a barrier to the issuance of suction dredge mining permits by CDFW.  According to the Eimer Plaintiffs, AB 120 and SB 1018 violated Article IV, § 9 of the California Constitution, in that these two bills amended several sections of the California Codes on a variety of subjects unrelated to suction dredge mining.  [RJN, Exh. 2 at p. 18; RJN, Exh. 3 at p. 23.]  Moreover, the Eimer Plaintiffs assert that AB 120 and SB 1018 cobbled together unrelated subjects so that the unpalatable requirements of the bills – i.e., those provisions which acted as a de facto prohibition on suction dredge mining – could secure passage.  The Eimer Plaintiffs argue that such an action by the Legislature is unconstitutional because all provisions of a bill must be related and have a common purpose.  In support, they point to Homan v. Gomez (1995) 37 Cal.App.4th 597, and Harbor v. Deukmejian (1987) 42 Cal.3d 1078.

In opposition, CDFW contends both AB 120 and SB 1018 are budget trailer bills – not budget bills – related to public resources.  According to CDFW, as long as the bills’ provisions are reasonably germane to a common theme, purpose, or subject, then they do not violate the single-subject rule contained in Article IV, § 9.  CDFW argues that the subject of the challenged laws is “public resources”, and that this topic is not so broad as to violate the single-subject rule.

Article IV, § 9 of the California Constitution provides: “A statute shall embrace but one subject, which shall be expressed in its title.  If a statute embraces a subject not expressed in its title, only the part not expressed is void.  A statute may not be amended by reference to its title.  A section of a statute may not be amended unless the section is re-enacted as amended.”  (Cal. Const., Art. IV, § 9.)

Courts have recognized that “[t]he single subject clause has as its ‘primary and universally recognized purpose’ the prevention of log-rolling by the Legislature, i.e., combining several proposals in a single bill so that legislators, by combining their votes, obtain a majority for a measure which would not have been approved if divided into separate bills.”  (Harbor v. Deukmejian (1987) 43 Cal.3d 1078, 1096; see also, City of Cerritos v. State (2015) 239 Cal.App.4th 1020; Professional Engineers in Cal. Govt. v. Brown (2014) 229 Cal.App.4th 861, 868.)

“[T]he single-subject rule ‘is to be liberally construed to uphold proper legislation and not used to invalidate legitimate legislation.’  [Citations.]  The Legislature may combine in a single act numerous provisions ‘“governing projects so related and interdependent as to constitute a single scheme,”’ and provisions auxiliary to the scheme’s execution may be adopted as part of that single package.  [Citations.] … The constitutional mandate [citation] is satisfied if the provisions themselves are cognate and germane to the subject matter designed by the title, and if the title intelligently refers the reader to the subject to which the act applies, and suggests the field of legislation which the text includes.’”  (Marathon Entertainment, Inc. v. Blasi (2008) 42 Cal.4th 974, 988-989.)

“In short, legislation complies with the single-subject rule ‘if its provisions are either functionally related to one another or are reasonably germane to one another or the objects of the enactment.”  (Tomra Pacific, Inc. v. Chiang (2011) 199 Cal.App.4th 463, 482, quoting Harbor v. Deukmejian, supra, 43 Cal.3d at p. 1100.)  “A legislative provision is ‘germane’ for purposes of the single-subject rule if it is ‘auxiliary to and promotive of the main purpose of the act or had a necessary and natural connection with that purpose….’”  (Tomra Pacific, supra, 199 Cal.App.4th at p. 484, quoting Metropolitan Water Dist. v. Marquardt (1963) 59 Cal.2d 159, 172-173.)

Here, in the current litigation, CDFW contends there is a significant distinction between the budget bill and what are known as “budget trailer bills”.  According to CDFW, trailer bills are not part of the related budget act, and over the years, the Legislature has passed an increasing number of budget trailer bills with topics ranging from state finance to public safety to taxation.  CDFW contends that in this instance, AB 120 and SB 1018 were budget trailer bills related to “public resources” – a category that is not too broad under the holding of City of Cerritos v. State (2015) 239 Cal.App.4th 1020.  CDFW asserts that as it relates to “public resources”, the terms of a moratorium on suction dredge mining and the related environmental review are “reasonably germane”.

In City of Cerritos v. State (2015) 239 Cal.App.4th 1020, the court examined an assembly bill which governed the dissolution and wind down of redevelopment agencies.  The plaintiffs argued the bill violated the single-subject rule because it contained an appropriation to carry out the act, and substantive changes to the Community Redevelopment Law.  (City of Cerritos, supra, 239 Cal.App.4th at p. 1048.)   The court found that the provisions of the bill were “reasonably germane to one another and to the object or purpose of the act” – noting that the title of the bill stated it was an act to amend certain code sections “relating to development, and making an appropriation therefor, to take effect immediately, bill related to the budget.”  (Id. at p. 1050.)  In finding that the bill’s specific provisions demonstrated a “functional relationship or germaneness between its parts,” the court found that the provisions of the bill all related to the “subject of redevelopment and its impact on available funding sources to combat the declared 2011 fiscal crisis and balance the budget.”  (Id. at p. 1050.)  As a result, the court held that the bill did not violate the single-subject rule because, “[r]ather than an amorphous and excessively general purpose such as ‘fiscal affairs,’” the bill’s main purpose was “a sufficiently narrow single subject.”  (Id. at p. 1051.)

As noted by CDFW, the City of Cerritos court also stated that “‘[t]railer bills are generally separated by subject area such as education, resources, or health, to minimize possible conflicts with single subject limitations that could occur if a general omnibus trailer bill were to be proposed.’”  (City of Cerritos, supra, 239 Cal.App.4th at pp. 1051-52, quoting People v. Wallace (2004) 120 Cal.App.4th 867, 873.)  “In other words, a trailer bill is not part of the budget act; it is separate and remains subject to veto.”  (Professional Engineers in Cal. Govt. v. Schwarzenegger (2010) 50 Cal.4th 989, 1049.)

Here, in the current litigation, the challenged provision in AB 120 states:

Existing law designates the issuance by the Department of Fish and Game of permits to operate vacuum or suction dredge equipment to be a project under the California Environmental Quality Act (CEQA), and suspends the issuance of permits, and mining pursuant to a permit, until the department has completed an environmental impact report for the project as ordered by the court in a specified court action.  Existing law prohibits the use of any vacuum or suction dredge equipment in any river, stream, or lake for instream mining purposes, until the Director of Fish and Game certifies to the Secretary of State that (a) the department has completed the environmental review of its existing vacuum or suction dredge equipment regulations as ordered by the court, (b) the department has transmitted for filing with the Secretary of State a certified copy of new regulations, as necessary, and (c) the new regulations are operative.  [¶]  This bill would modify that moratorium to prohibit the use of vacuum or suction dredge equipment until June 30, 2016, or until the director’s certification to the secretary as described above, whichever is earlier.  The bill would additionally require the director to certify that the new regulations fully mitigate all identified significant environmental impacts and that a fee structure is in place that will fully cover all costs to the department related to the administration of the program.

[Miners’ RJN, Exh. 2, pp. 4-5, emphasis added.]

 

Contrary to the argument of the Eimer Plaintiffs, this provision did not substantively change the obligations of CDFW regarding the suction dredge mining permit program under section 5653.1.  Instead, it primarily addressed the extension of the already-existing moratorium, provided a specific sunset clause for the expiration of the moratorium, and reiterated CDFW’s obligations to certify new regulations that fully mitigated all significant environmental impacts of the program, and institute a fee structure to cover the administrative costs.

Similarly, SB 1018 also did not substantively change the obligations of CDFW under section 5653.1.  As with AB 120, the relevant provision in SB 1018 repealed the sunset provision, and made “the moratorium operative until the director makes that certification to the secretary.” [Miners’ RJN, Exh. 3, pp. 2-3.] In addition, SB 1018 provides:

The bill would, in order to facilitate the making of that certification, require the department to consult with other agencies as it determines to be necessary, and, on or before April 1, 2013, prepare and submit to the Legislature a report with recommendations on statutory changes or authorizations necessary to develop the required suction dredge regulations, including, but not limited to, recommendations relating to the mitigation of all identified significant environmental impacts and a fee structure that will fully cover all program costs.

[Miners’ RJN, Exh. 3, p. 3.]

This provision did not substantively amend or change then-existing statutory law. Instead, it merely provided more specific guidelines for CDFW to follow in fulfilling its obligations under section 5653.1

Accordingly, the Eimer Plaintiffs have not demonstrated that as a matter of law, AB 120 and SB 1018 violated the single-subject rule embodied in Article IV, § 9, and thus, they have not met their burden on this issue.  The MSJ is denied and AB 120 and SB 1018 are found to be constitutional under California Constitution Article IV, § 9.

Ruling

Accordingly, the MSJ of the Eimer Plaintiffs is denied, and AB 120 and SB 1018 are found to be constitutional under California Constitution Article IV, § 9.

 

 

 

 

 

 

 

 

 

 

 

Motion:     Motion for Judgment on the Pleadings (SB 637)

                       

            Movant:          Defendant/Respondent California Department of Fish & Wildlife

 

            Respondent:   Plaintiffs/Petitioners Derek Eimer, Stephen Jones, David Guidero,                                            Marvin   Lampshire II, and Dyton Gilliland

 

Motion for Judgment on the Pleadings-

Applicable Law- See discussion on pg. 23 re the law on Judgment on the Pleadings.

As noted above, CDFW termed this an “Opposition to Plaintiffs’ Motion for Summary Judgment and … Defendants’ Cross-Motion for Judgment on the Pleadings.”  In this instance, it appears that CDFW’s motion for judgment on the pleadings rests on the recent passage of Senate Bill 637, which amended Section 5653 as of January 1, 2016.  As discussed above, the newly-enacted amendments to Section 5653 now require suction dredge mining permit applications to include a water quality permit, or letter of waiver, under the Federal Clean Water Act and the state water quality law.  According to CDFW, none of the Eimer Plaintiffs have demonstrated that they have applied for such a permit, and they cannot do so because the State Water Resources Control Board has previously indicated that it will take a few years to issue these permits.  [See, Haven Decl. in Support of Defs. Opp. to Mtn. for Prelim. Inj. in Kimble v. Harris, filed May 1, 2013 (CIVDS 1012922).]  As a result, CDFW contends that even if the Eimer Plaintiffs were to prevail on their summary judgment motion, they still would not be able to return to suction dredge mining at this time.  The Court finds this argument persuasive.

Ruling

The Court grants CDFW’s Motion for Judgment on the Pleadings without leave to amend, as the Plaintiffs cannot demonstrate the defect can be cured by amendment.

 

Defendant DFW to prepare Order and Judgment as necessary.

 

 

_________________________________

Judge of the Superior Court

Gilbert G. Ochoa

October 16, 2017

[1]  Per Stipulation and Order filed January 13, 2014, Karuk Tribe of California, et al. v. Calif. Dept. of Fish & Game, et al., Case No. RG5211597, Alameda County, filed May 6, 2005 (“Karuk I”) no longer needs to be listed in the caption of the coordinated cases since the continuing jurisdiction of the Court to enforce the December 20, 2006 Consent Order in Karuk I is terminated and nothing remains to be resolved in the case.

Per Stipulation and Order, Hillman, et al. v. Calif. Dept. of Fish & Game, et al., Case No. RG09434444, Alameda County, filed February 5, 2009 (“Hillman”) was dismissed per Judgment filed January 13, 2014.

[2]  The California Department of Fish & Game (CDFG) changed its name to California Department of Fish and Wildlife (CDFW) on January 1, 2013.

[3]  As discussed further below, Section 5653 was amended as of January 1, 2016.

[4]  As noted above, per Stipulation and Order filed January 13, 2014, Karuk I was dismissed because the continuing jurisdiction of the Alameda Superior Court to enforce the December 2006 Consent Order was terminated, and nothing remained to be resolved in the case.

[5] Hillman, et al. v. Calif. Dept. of Fish & Game, et al., Case No. RG0943444, Alameda Superior Court, filed February 5, 2009.  The Hillman case was dismissed pursuant to a Judgment entered on January 13, 2014.

[6] The Consent Order described CDFW’s legal obligations in terms of Public Resources Code § 21166, and Cal. Code Regs., tit. 14, §§ 15162-15164.  [AR A049201-02; see also, A005523.]

[7] However, CDFW has not certified completion of all five items required by Section 5653.1(b), and the moratorium remains in effect.

[8]  In the Stipulation and Order, Karuk and CDFW agreed that, pursuant to Code of Civil Procedure § 1021.5 under a catalyst theory, CDFW will pay Karuk’s counsel $350,000.00 in attorneys’ fees.  The Court signed this Order on November 19, 2015.

[9] The changes are indicated by bold type.

[10]  As counsel knows, this Court’s ruling relied heavily on the appellate decision in People v. Rinehart (2014) 230 Cal.App.4th 419.  However, the case was depublished shortly after this Court’s ruling, and Rinehart was reviewed by the California Supreme Court, Case No. S222620.  The Supreme Court reversed the lower court decision, as will be discussed in detail infra.

[11]  “An ‘unpatented’ claim is a possessory interest in a particular area solely for the purpose of mining; it may be contested by the government or a private party.  By contrast, if a claim is patented, the claimant gets a fee simple interest from the United States and no contest can be brought against the claim.”  (People v. Rinehart (2016) 1 Cal.5th 652, 659, fn. 2, quoting Clouser v. Espy (9th Cir. 1994) 42 F.3d 1522, 1525, fn. 2.)

[12]  The Supreme Court stated: “Obstacle preemption can play an important role in preventing states from creating, inadvertently or otherwise, functional impediments that materially constrain legitimate federal objectives. But it can also lead to the overzealous displacement of state law to a degree never contemplated by Congress. Accordingly, the threshold for establishing obstacle preemption is demanding: ‘It requires proof Congress had particular purposes and objectives in mind, a demonstration that leaving state law in place would compromise those objectives, and reason to discount the possibility the Congress that enacted the legislation was aware of the background tapestry of state law and content to let that law remain as it was.’ [Citation.].”  (Rinehart, supra, 1 Cal.5that p. 661.)

[13]  The Court also discussed the seminal case of Granite Rock, which is viewed as the leading decision on the preemptive effect of the Mining Law of 1872.  Regarding Granite Rock, the Court noted that the United States Supreme Court rejected the argument that the law categorically foreclosed states from imposing permit requirements on federal land.  (Rinehart, supra, 1 Cal.5th at p. 662, citing to Granite Rock, supra, 480 U.S. at pp. 582-584.)  However, the Court also noted that the Granite Rock decision “left open the possibility of future preemption challenges to specific permit requirements or, as here, refusals to issue a permit.”  (Ibid.)

[14]   In Lucas, the landowner paid $975,000 for two residential beachfront lots on which he intended to build single-family homes.  At the time he acquired the lots, there was no legal restraint on the right to build.  However, two years later, South Carolina enacted a statute imposing setback requirements that effectively prevented the owner from erecting any permanent habitable structure on the lots.  The owner argued that the effect of the statute was to deprive the property of all value, and that this deprivation entitled him to compensation.  The trial court agreed with the owner, and awarded compensation.  The state supreme court reversed, and ruled that when a regulation regarding the use of property is designed to prevent serious public harm, no compensation is due.

However, the U.S. Supreme Court rejected the state supreme court’s approach, and provided guidelines to assist in the application of the rule that compensation is not required if the uses prohibited are also prohibited under nuisance law, or were part of the owner’s title or estate.  It was found that courts must analyze, among other things, “the degree of harm to public lands and resources, or adjacent private property, posed by the claimant’s activities, the social value of the claimant’s activities and their suitability to the locality in question and the relative ease with which the alleged harm can be avoided through measures taken by the claimant and the government (or adjacent private landowners) alike.”  (Lucas, supra, 505 U.S. at p. 1030.)

After providing two illustrations of the nuisance exception, the Supreme Court then conceded that regulatory action could have the effect of eliminating the land’s only economically productive use, and stated that no compensation would be required because the regulation did not prevent a productive use that was previously permissible under property and nuisance principles.  Notably, the Lucas Court did not determine that the state law deprived the owner of all beneficially economic use of his lots.  Instead, both the Supreme Court and the trial court assumed that the lots were rendered valueless by the regulation.

[15]  It should be noted that Senate Bill No. 637 also added Section 13172.5 to the Water Code, which gives the State Water Resources Control Board and/or regional water boards the power to adopt or waive waste discharge requirements that address the water quality impacts of mercury and other metals.  (Water C., § 13172.5 (b)(1).)  Notably, the statute also allows the Water Board and/or regional water boards to “[p]rohibit any particular use of, or methods of using, vacuum or suction dredge equipment, …, for the extraction of minerals that the state board or a regional board determines generally cause or contribute to an exceedance of applicable water quality objectives or unreasonably impact beneficial uses.”  (Water C., § 13172.5 (b)(3).)  In addition, the water boards can “[s]pecify certain conditions or areas where the discharge of waste or other adverse impacts on beneficial uses of the waters of the state from the use of vacuum or suction dredge equipment is prohibited ….”  (Water C., § 13172.5 (b)(2).)

[16]  The parties purportedly stipulated to shorten the notice time so that CDFW’s cross-motion could be heard concurrently with the summary judgment motion.

 

If you made it through all that, CONGRATULATIONS! You care about our right to mine more than almost everyone else! You are one of the few patriots that has the time and patience to educate yourself with the details…

UPDATE ON DREDGE CASES & BYLAW VOTE RESULTS

Dear PLP Members and the Mining Community,

It has been a long time since there was any movement in the consolidated California dredging cases PLP first brought against the state in 2009. Since then other cases and other litigants (like the New ’49ers and WMA), have joined us in the fight which the court system combined into the consolidated cases. Yesterday, Nov. 14th, Judge Ochoa held a hearing to decide the next steps in the cases since the CA Supreme Court ruled against Rinehart (and all of us!) this past summer, reversing decades of law in a single very bad decision. Even though the U.S. Supreme Court is being petitioned on Brandon’s behalf by Pacific Legal Foundation, Judge Ochoa, who had previously put everything on hold until after Rinehart was decided, has moved off that position and per our attorney James Buchal “indicated that he did not see any virtue in continuing delay, suggesting that it was unlikely that the United States Supreme Court would even take the case, and announced his intention to set a trial date. This greatly discomforted the State, whose lawyers began to raise all sorts of objections…and the Judge agreed with me, ultimately setting a trial date of November 13, 2017.”

And now hearing the remaining cases separately, the CEQA hearing will be heard separately on April 21, 2017. The State has requested an opportunity to brief the impact of the California Supreme Court’s decision on the Judge’s prior decision (they want him to revise it, as he suggested he might, and this doesn’t bode well for the miners), and to address the federal supremacy issue as it relates to CEQA , etc. All briefs are due 45 days before the April hearing.

We have our work cut out for us, and we appreciate all of you who have stood with us in this fight over the many years since we filed the first lawsuit against the state of California in 2009. We keep fighting the fight in hopes that the courts will recognize that the miners have certain rights that have been stomped on and what’s more, we are not giving up and going away. It’s the right thing to do.

We will keep you updated as progress is made.

Another “thank you” is in order to our membership!

PLP’s proposal to update and amended its bylaws have been overwhelmingly approved by you. With quorum attained, as of October 16, 2016 the Corporation has placed these bylaws into effect as the new document that is fully compliant with California State law.

The Vote Breakdown:

Participation Rate: 52% of the Entire Membership
“Yes” Votes: 93%
“No” Votes: 6%
Ballots Returned Without a “Yes” or “No” Preference: 1.6%

Thank you again for participating in this very important and long overdue initiative. With your help we will continue our fight against the State of California concerning the dredge ban and supporting the mission of MMACUSA.ORG and the Mining Districts, as well as other Public Land rights issues.

For Clarification:
There are no Board Approved membership meetings at this time. This website, www.publiclandsforthepeople.org is the only website for PLP. All updates shall be posted here.

Ron Kliewer
President
Public Lands for the People

MINERS MAKING THE RULES UPDATE: A MUST READ!

Up-Dated March 10th 2016

Miners Making the Rules and Regulations supported in Washington D.C.

The existing Federal Mining Law gives claim holders the authority to make rules and regulations in the context of organized Mining Districts. The miners within traditional mining districts have been neglecting their duties under Federal Mining law (30 U.S.C. section 22).  This is why the Minerals and Mining Advisory Council (MMAC) was formed as a project under Public Lands for the People (PLP) to organize the traditionally and legally recognized Mining Districts within the United States and encouraging the miners holding mining claims to step to the plate, legally, and take charge of their future.

Presently MMAC has partnered with mining associations, unions, PLP and the National Association of Mining Districts. MMAC is a combined effort by numerous concerned miners, mine owners, geologists, mining engineers, retired politicians, retired military personnel, and mining attorneys that are gravely concerned about the future security of our nation and its increased dependence on foreign sources of mined materials. Currently the United States is importing up to 92% of raw materials, metals and rare-earth minerals from overseas. Mining Districts can change all of this. (This was voiced by Capitol Hill committee members on our March trip to Washington DC)

To date, the failure of Congressional action to rein in agencies at the Federal and State level from extremist green groups has nearly shut down the entire mining industry through onerous and prohibitive regulations and is also shutting out the general public at large.  This is not consistent with the 1872 Mining Law, the mining district by-laws, the 1955 Multiple Surface Use Act, the 1969 National Environmental Policy Act, the 1970 National Minerals Policy Act and the 1976 Federal Land and Policy Management Act. MMAC was asked by the some Congressional House Natural Resources Committee members to put together a comprehensive solution to our industry’s plight.  MMAC’s solution draft bill is named the “Minerals & Mining Regulatory Reform Act – A Clear Path Respecting Mining Rights” providing true accountability and regulatory certainty in existing law.  This proposed bill provides:

 

  • Regulatory certainty of a 30 day approval mitigation deadline
  • Regulatory certainty of exemptions to the Clean Water Acts
  • Regulatory certainty of exemptions to the Mine Safety and Health Administration
  • Eliminates duplicative regulation by State and local governments
  • Eliminates duplicative federal agency permits and the permit system
  • Equal Access to Justice Act relief
  • Cost effective due process appeal relief for unreasonable regulation
  • Reasonable regulatory best management standards and mitigation formation procedures
  • Clear environmental standing requirements to eliminate frivolous environmental lawsuits
  • The TRADITIONAL MINING DISTRICTS as arbiters of reasonable regulation

 

MMAC’s objectives are advancing methodically and are being well received by regional Bureau of Land Management where MMAC has recognized their needed role in this process and this new path.  The MMAC website, PLP facebook and ICMJ have been documenting our progress.

PLP and MMAC went to Capital Hill in Washington D.C the first week of March 2016.  We had more than 36 meetings with Senators, Congressmen, and their legislative staffers on the House Natural Resource, Energy and Natural Resource, Oversight and Armed Services committees.  In sum they felt our proposed bill and mainly the idea of the MINING DISTRICTS are exactly what they are looking for from the Grass Roots of America.  What they were especially excited about is the power the traditional and congressionally recognized mining districts have presently, and with some clarification through the MMAC bill, can push back agency overreach!   Why were they so interested in the mining districts?  They saw the mining districts as a viable option to the issue that public lands go back to the States immediately and thus would trigger massive valid existing right determinations, which never end well for the miner.  The committees were not aware of this until MMAC and PLP opened their eyes, and a way to open the land and roads to recreation, hunting, ranching and other outdoor activities under the “free and open” language of the Mining Law.

We have been called back to work closely on this historic piece of legislation with the legislative staffers on our bill and review other bills for them on the federal level.  We are prepared to provide the Congressional education of the customary functions of the Mining Districts to the staffers.  The Mining Districts along with clarification through the MMAC bill can break up the conflicts while employing a constitutional representative form of local governance benefiting other recreational public land users, along with grazing, hunting and ranching. This will require funding to pay for our travel and research.   Now, here is where your help is needed.  PLP is a 501(c)(3) and your donation for this grand endeavor will be tax deductible.  Be part of the solution and make a healthy donation today in order that MMAC and PLP can continue to assist the local mining districts and educate Washington DC on the POWER OF THE MINING DISTRICTS!  Please make your check payable to: PLP and add “for MMAC Bill” on the memo part of the check and send to: Public Lands for the People Inc, 20929 Ventura Blvd., Ste 47-466  Woodland Hills, CA 91364, or donate online to use auto pay on a monthly $10.00 contribution basis www.publiclandsforthepeople.org for the MMAC bill.  See Washington DC progression as it happens on DC trips on PLP’s face book page https://www.facebook.com/publiclandsforthepeople .

REMEMBER $10.00 PER MONTH ON AUTO PAY IS ALL IT IS GOING TO TAKE ON YOUR PART TO TRY AND SAVE THE PUBLIC LANDS AND MINING FOR ALL OF US.

The Dept. of Interior has plans presently to place all public lands under environmental land designations that will not be for public use!

PLP COMMENT ON SB 637

The State of California has Intentionally Violated Federal Law

Public Lands for the People believes that the State of California has intentionally violated Federal Law once again with the passage of SB 637.

When in conflict, Federal Law will always trump State Law. SB637 will require the dredger to apply for a permit even though common suction dredging is exempt on the Federal level from requiring permits. Dredging falls under what is known as “Incidental Fallback” There is ample case law to back this up. You can read the reasons why in PLP’s Incidental Fallback position paper.

PLP Position Paper on Incidental Fallback

Presentation1


Incidental Fallback

“Incidental Fallback” represents a net withdrawal, not an addition of material. Incidental Fallback cannot be a discharge within the meaning of any State or Federal Clean Water Acts (CWA) as the CWA only permits and regulates additions. All gold mining suction dredges are designed to withdraw heavy metal (based on their specific gravity) from gravels and soils, it cannot be said that suction dredges add anything within the meaning of the CWA.  It is simple math, the difference between addition and subtraction. Those activities that add can require a 401, 402, or 404 permit, those that subtract do not require a permit at all. That is the intent of Congress. The EPA and the Army Corp has for the past 30 years tried to redefine “Incidental Fallback” under a regulated and permitted “redeposit” category, but the courts have found this agency practice invalid on numerous occasions and instructed the EPA and Army Corp to remove their offending regulatory expansion.

To illustrate this point originally in Nat’l Mining Ass’n v. U.S. Army Corps of Eng’rs, 145 F.3d 1399, 1404 (D.C.Cir.1998). The court explained that, “[b]ecause incidental fallback represents a net withdrawal, not an addition, of material, it cannot be a discharge” and questioned “how there can be an addition of dredged material when there is no addition of material.” Emphasis added.

And

This understanding of “discharge” excludes the small-volume incidental discharge that accompanies excavation and landclearing activities.   Senator Muskie explained that “the bill tries to free from the threat of regulation those kinds of manmade activities which are sufficiently de minimis as to merit general attention at the State and local level and little or no attention at the State and local level and little or no attention at the national level.” Senate Report on S. 1952, 95th Cong., reprinted in 1977 Legis.Hist. at 645.  Senator Domenici stated that “we never intended under section 404 that the Corps of Engineers be involved in the daily lives of our farmers, realtors, people involved in forestry, anyone that is moving a little bit of earth anywhere in this country that might have an impact on navigable streams.” Senate Debate, id. at 924.

This holding stands today and is reflected from the National Association of Homebuilders v. Corps decision (D.D.C. 2007) invalidating the January 17, 2001, amendments to the Clean Water Act Section 404 regulatory definition of “discharge of dredged material” (referred to as the “Tulloch II” rule). The U.S. Army Corps of Engineers (Corps) and the Environmental Protection Agency (EPA) have promulgated a joint final rule to amend this definition by conforming the Corps’ and EPA’s regulations to the language of the court’s opinion by deleting language from the regulation that was invalidated.

Agencies like to try and say that sediment movement or the turbidity created by suction dredging also creates a discharge, but in Frobel v. Meyer, 13 F. Supp.2d 843 the court ruled: “Redepositing of indigenous sediment caused by state agency’s removal of dam did not result in any “discharge of dredged material” that would require permit from Army Corps of Engineers under Clean Water Act (CWA) and either possible version of implementing regulations, even if manner in which dam was removed created a “scouring action” that disturbed sediment and funneled it downstream. Federal Water Pollution Control Act, § 404(a), as amended, 33 U.S.C.A. § 1344(a); 33 C.F.R. § 323.2(d).”

The State, as mandated by the CWA and funded by federal law, cannot carry out an objective when it conflicts or is inconsistent with express Congressional intent, exemptions, and purpose.  See CA Coastal Commission v. Granite Rock 480 U.S. 572.