Judge Ochoa Stays CEQA Ruling in Remarkable Court Proceeding
In San Bernardino Superior Court, Judge Gilbert Ochoa candidly admitted that the mining community is being denied justice in his own courtroom by deferring a decision on the CEQA case. In what amounts to a judicial ole’, Judge Ochoa is kicking the can down the road until the California Supreme Court rules on the Brandon Rinehart case.
From Attorney James Buchal:
This morning was the scheduled time for Judge Ochoa to hear and rule upon CEQA and Administrative Procedure Act challenges to the Department’s FSEIR on suction dredging, as well as the time set for a hearing on a motion for summary judgment (and the Department’s counter-motion for judgment on the pleadings) concerning the question whether AB 120 and SB 1018 were unconstitutional for violation of the “one subject” rule in the California Constitution.
The hearing was delayed because the Judge was in the process of preparing his tentative ruling (poor quality camera copy attached—I’m still at the airport): he would not decide anything; everything would be stayed pending a ruling in People v. Rinehart. I was given the opportunity to contest the tentative ruling, and pointed out to the Judge that while there was some limited overlap between the federal preemption issues and the CEQA arguments, the “one subject” case had nothing to do with People v. Rinehart.
I explained that we were in the process of getting water quality permits or waivers, but even if we got them, the unconstitutional provisions of AB 120 and SB 1018 would still require certifications about birds, noise, wildlife and historical/cultural issues, such that we could not get suction dredging permits even to run under the restrictive 2012 regulations. Striking down AB 120 and SB 1018 would remove all legal obstacles (other than water quality certifications) to the Department’s issuance of permits under the 2012 regulations without regard to any federal preemption issues. I was interrupted in mid-argument as I then strayed into the merits of the CEQA baseline argument (which also has nothing to do with federal preemption).
At the end of the hearing, after hearing from the Department, which reversed its earlier position that we needed to decide these issues, I said that of course the Department and Tribe were happy for delay, that justice delayed is justice denied, and this was unfair. The Judge remarked that he agreed with my last observation, it was unfair, but there was nothing he could do about it.
Whether or not a federal court will recognize the extraordinary nature of our treatment in the California courts as, in substance, a concerted effort to frustrate federal civil mining rights, remains to be seen. This morning’s developments are certainly more evidence in support of that position.
James L. Buchal
Murphy & Buchal LLP
Read Judger Ochoa’s Ruling HERE
Albert Einstein defined insanity as doing the same thing over and over again and expecting different results. We are mindful of this definition as the Board perfects the next course of action to prevail against our adversaries.
Public Lands for the People will be back in court Wednesday, January 20th at 8:30 a.m. to present oral arguments for the last 2 causes of action in front of Judge Gilbert Ochoa. Commonly referred to as the “CEQA case”, these arguments center on the State of California’s violation of the Administrative Procedures Act. The New 49’ers and Western Mining Alliance are partners with PLP in this action and will be present in court as well. Judge Ochoa has latitude to issue a ruling at the time of oral arguments or defer to a later date.
In 2015, Judge Ochoa ruled in the miner’s favor on the issue of Federal Preemption and that as a matter of LAW and in actual FACT, that the State’s “extraordinary scheme” of requiring permits then refusing to issue them is an “obstacle to the full purposes and objectives of Congress”. PLP will defend this important court victory at the appellate level against the State when necessary.
San Bernardino Superior Court (Judge Gilbert Ochoa)
Wednesday, January 20th, 8:30 a.m.
247 West Third Street San Bernardino, CA 92415-0210
Thank you very much,
PLP Board of Directors
The Gold Prospectors Association of America will be holding their annual Gold and Treasure Shows starting Feburary 20th in Pomona, California. Public Lands for the People is scheduled to be on hand at every Gold and Treasure Show this season. It is a thrill to see familiar folks at these events, and a pleasure to meet new ones. Please attend one of these shows, stop by the PLP booth and say hello.
GPAA Gold and Treasure Show Schedule
Thank you very much,
PLP Board of Directors