Hearing Before Judge Gilbert G. Ochoa – Update

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

Judge Ochoa then asked all counsel to meet with him in chambers.  He stated that he would like to see the matter settled, if at all possible, before he ruled on the various motions.  We discussed the previous settlement attempts with judge Ochoa which were not successful.  Nevertheless, Judge Ochoa exercised his judicial authority to order a Mandatory Settlement Conference (“MSC”) beginning June 24, 2014, which may continue for one or two more days.  Judge Ochoa will personally preside at the MSC as the settlement Judge, and is prepared to make a substantial personal commitment of time and effort to see if any settlement can be achieved.  Judge Ochoa will require all parties to the litigation to be either personally present in Court for the MSC, or to be available by telephone.  Those parties who cannot attend personally, should be able to attend by telephone conference at no cost to them.  Judge Ochoa has the authority to sanction any party who does not attend the MSC either in person, or by telephone.

When available, a copy of Judge Ochoa’s written Order regarding the MSC, and the mandatory attendance of all parties will be provided.  Under any circumstances, Jerry Hobbs and David Young will be attending the MSC in person, and all other parties to the litigation are urged to attend in person.  Judge Ochoa further stated that he would want to personally address the parties.  The parties would have an opportunity, either through counsel, or personally to address Judge Ochoa.  Since Judge Ochoa has yet to rule on the Motions now pending before him, the MSC should give everyone a more complete education on the realities of what it takes to actually engage in suction dredge mining in California, and the impact that the State’s prohibition has had on suction dredge miners.

Judge Ends Fees at SoCal National Forests for Visitors who Park and Hike

By Teresa Rochester

Visitors do not have to pay a fee to enter national forests in Southern California if they do not use bathrooms, picnic tables or other amenities, a federal judge determined this week.

Four hikers, including two from Ojai, filed a lawsuit in late 2012 challenging the U.S. Forest Service’s right to charge visitor fees at Los Padres, Angeles, San Bernardino and Cleveland national forests.

Senior U.S. District Court Judge Terry J. Hatter Jr. on Monday agreed that the fee, called an Adventure Pass, cannot be levied if people use the forests but not amenities such as campgrounds.

Adventure Passes are $5 for a day or $30 for a year.

“If all a person wants to do is park and have a picnic or go for a hike or camping or backpacking, they do not have to pay a fee,” said Matt Kenna, the hikers’ Colorado-based attorney. “Now if you go and use a developed campground then you will have to pay a fee, as you should.”

John Heil, U.S. Forest Service press officer for the Pacific Southwest Region, said the forest service is reviewing the decision and had nothing further to add at this time.

Alasdair Coyne, conservation director of the Keep Sespe Wild group, said he was pleased with Hatter’s ruling.

The Ojai man was ticketed a couple years ago for parking and hiking in Rose Valley. Instead of fight the ticket, he joined the lawsuit.

“The fee law that was enacted in 2004 very clearly stated that there could not be fees charged for parking (and hiking),” Coyne said. “This is a clear-cut ruling and the message couldn’t be more clear.”

The fee law is formally called the Federal Lands Recreation Enhancement Act. It allows for fees in “high-impact” recreation areas that have amenities such as picnic tables, developed parking and security.

The lawsuit that led to Monday’s decision followed several legal challenges to the fees in recent years.

In February 2012, the 9th U.S. Circuit Court of Appeals sided with plaintiffs who sued the Forest Service over fees at Mount Lemmon in Arizona.

The Forest Service went too far in levying those fees on visitors who parked their cars to hike, picnic or camp on land that hadn’t been improved, the Arizona suit alleged.

Fees are used for improvements such as purchasing toilets or picnic tables, officials have said.

Kenna said that while the decision in the Mount Lemon case applied only to that forest, he and others expected the Forest Service to apply the ruling at other sites.

When that didn’t happen, the local lawsuit was filed. Both sides tried to hammer out a deal last year but were unable to reach consensus, Coyne said.

In light of Monday’s decision, which only applies to four Southern California forests, Kenna said he expected the federal agency to eliminate the fee at additional locations.

“If they don’t start following this in other forests, we will just keep suing them,” Kenna said.


Forest Service Aims to Close Roads

Our mining and land use rights are under attack again as the U.S. Forest Service aims to close and even destroy roads in Cleveland National Forest.   These road closures are part of the Forest Service’s “Travel Management Program” which serves to tighten government control over road use and by extension, land access on public lands.

The road closures in San Diego are a small part of the government’s long-term plans.  On June 8, 2006, the Forest Service quietly began implementing it’s schedule for the travel management rule.  Since then, closure plans outlined by local authorities under Forest Service guidance have been in the works.  As these plans are implemented on lands nationwide, access to more and more public lands and mining claims is being restricted.

PLP has filed a Freedom of Information Act request regarding the plan to close the roads in San Diego.  Under the National Environmental Protection Act, the Forest Service is supposed to consult the county before shutting down public rights of way.  We want to find out what procedures were followed and pursue whatever course of action might overturn these intrusions upon our land use rights!

Beyond our own efforts, we need fellow miners and land users to stand up and make their voices heard!  Any prospectors and miners with claims in the Cleveland National Forest should submit their comments before March 19 to jaheys@fs.fed.us.

Further details can be found in the GPAA’s Pick and Shovel Gazette Road Closure Story & Editorial

For more information contact:

Jeff Heys
Forest Planner
Forest Service

Cleveland National Forest
p: 858-674-2959
f:  858-673-6192

10845 Rancho Bernardo Road, Suite 200 
San Diego, CA 92127

Motion Denied

On August 28, 2013, Judge Gilbert G. Ochoa, of the San Bernardino County Superior Court, denied PLP’s Motion for a Preliminary Injunction on the grounds there was no proof of irreparable harm caused to miners by California’s ban on suction dredge mining. Judge Ochoa appeared to take the position that whatever harm occurred to the miners could eventually be made good by the payment of money damages. Among numerous matters, PLP, in its Motion papers, and at oral argument, vigorously asserted that the fact that the miners face criminal prosecution if they violate an unconstitutional statute, was in and of itself irreparable harm. A criminal record attaching to a miner’s good name is not something that can be made whole by the payment of money damages.

One of the cases that PLP brought to Judge Ochoa’s attention was the criminal conviction of Brandon Rhinehart for suction dredge mining in violation of California’s prohibition on such mining. PLP help retain an attorney for Mr. Rhinehart in defense of his prosecution for violating the ban on suction dredge mining. The conviction of Mr. Rhinehart has been appealed, and PLP has been informed that the California Court of Appeal has accepted Mr. Rhinehart’s case for review.

In addition, PLP’s attorney is appealing to the Court of Appeal Judge Ochoa’s denial of a Preliminary Injunction staying the ban on suction dredge mining. The Rhinehart case will figure as an example of irreparable harm caused to miners should they violate California’s unconstitutional prohibition on suction dredge mining. Both appeals will raise issues not only of irreparable harm, but also of Federal preemption allowing suction dredge mining, making the California prohibition on suction dredge mining unconstitutional.

PLP has previously been successful in the Court of Appeal in having that Court overturn the decision of a Superior Court Judge who prohibited issuing of permits for suction dredge mining, prior to the California statute banning such mining that is now in intensive litigation.

PLP’s appeal, as well as the Rhinehart appeal, does give miners hope for light at the end of the tunnel, and could well bring suction dredge mining back to California before the next dredging season. PLP would like to thank all of the folks who have supported us in the past, and thank those who will continue their support in the future. PLP is fighting for you!


Jerry Hobbs
President, Public Lands for the People, Inc.

Siskiyou County Wins Lawsuit

Press Release from Siskiyou County Farm Bureau

Download a PDF copy of the decision.

In an important decision that protects private water rights while maintaining environmental protections, a Siskiyou County Superior Court judge ruled that a state agency had overstepped its authority in trying to regulate farmers’ water use.

The ruling by Judge Karen L. Dixon determined that the California Department of Fish and Game had exceeded its authority by requiring farmers and ranchers to obtain a permit from DFG before they irrigate their crops. The Siskiyou County Farm Bureau filed suit against DFG last year, on behalf of members who farm along the Scott and Shasta rivers.

“This ruling establishes an important, statewide precedent,” Siskiyou County Farm Bureau President Jeff Fowle said. “There is no doubt that if DFG had been able to expand its authority here, it would have tried to regulate water rights elsewhere in the state. This decision reaffirms that water rights are administered by the courts and State Water Resources Control Board. Now, we can turn our attention to finding collaborative ways to improve conditions for fish while maintaining the sustainability of our farms and ranches.”

The case centered on Section 1602 of the Fish and Game Code, which requires individuals to notify DFG and potentially obtain a Lake and Streambed Alteration Agreement before conducting certain activities that alter a streambed. Permits have been required under the section for gravel mining, construction of push-up dams and other projects that physically alter streambeds—but DFG began notifying landowners along the Scott and Shasta that they would need to obtain permits simply to open an existing headgate or activate an existing pump in order to irrigate their crops.

In its lawsuit, the county Farm Bureau said the requirement would have been a “fundamental change” in the application of the code that would have jeopardized both water rights and property rights for farmers and ranchers.

“We understand that DFG wants to protect salmon in the rivers, but it has many other ways to do that already,” said Rex Houghton, the immediate past president of the county Farm Bureau. “Farmers will continue to work collaboratively with the agency to improve conditions for fish. The outcome does not change the notification requirement for activity that physically alters a streambed, but it is important to establish that DFG can’t require a permit for farmers simply to exercise their water rights.”

Because of the statewide implications of the case, the Siskiyou County Farm Bureau received support for the lawsuit from the California Farm Bureau Federation and county Farm Bureaus throughout the state. Attorney Darrin Mercier of Yreka argued the case on behalf of the county Farm Bureau.

The Siskiyou County Farm Bureau is a voluntary membership organization that works to protect and promote agricultural interests throughout Siskiyou County and to protect and improve the availability of food and fiber through responsible stewardship of natural resources.

Good News

Potentially Good News, As reported by Dave McCracken [and corrected by PLP]:

You guys will be interested to know that the dredging moratorium is now being challenged in Plumas County Superior Court. There may be a fast track possibility of overturning the existing moratoriums in this case.

This case began with a criminal complaint against Brandon Renehart for possessing and using a suction dredge without a permit in violation of Section 5653 of the Fish & Game Code.

In response,[Public Lands for the People, Inc and] our attorney, James Buchal (representing Brandon in this case), challenged the criminal complaint on its face (called a “Demurrer” in California law) based upon federal supremacy laws. James makes a compeling legal arguement that controlling case law in America prevents any State from enacting a prohibition against mining on the public lands — which is clearly what the State of California has done through a moratorium which prevents permits from being issued until an impossible set of circumstances have been met.

In turn, the State has filed a vigerous response alleging that the current moratorium is just temporary; something we all know is blatantly false. But it is clear the State is fighting very hard to overcome the Demurrer. James’ Reply to the State sets the record straight.

So now we will find out if the judge will dismiss the case or it will proceed to trial. My guess is that if the case is not dismissed here, since I believe there are no factual issues in dispute, and the resolution will be a matter of interpreting the law, this case could be rather quickly resolved in Summary Judgment. That could happen before the coming dredging season.

The above linked arguments make for interesting reading, because to a large extent, they mirror some of the main arguments that we [and PLP] are making in San Bernardino, a consolidation of civil cases [brought about by PLP,] that will perhaps take quite a bit longer to resolve.

In the event that the judge dismisses Brandon’s case based upon the argument that California’s present scheme of denying suction dredge permits to anyone is preempted by the supremacy clause, it would seem that suction dredging will immediately resume in California perhaps without any permits whatsoever. That would certainly be a reversal!