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Judge issues court order in California dredging case
By Brad Jones
GPAA Managing Editor
... California Superior Court Judge Gilbert Ochoa has issued a long-awaited court order on federal preemption in the ongoing legal battle over the statewide suction-dredge mining ban since the original two-year “moratorium” was imposed in 2009.
The court order is follow-up to Ochoa’s ruling on federal preemption in January. The court order, dated May 1, 2015 was issued exactly one year after Ochoa ordered a Mandatory Settlement Conference between gold miners, the California Department of Fish and Wildlife and environmental groups.
Last May, miners packed the courtroom as a show of their opposition to the state’s illegal dredging ban, which even the judge called an “extraordinary scheme” by the state to keep suction dredge miners from obtaining a permit.
Public Lands for the People, one of the plaintiffs in the case, will issue an official statement on the court order tomorrow, PLP President Walt Wegner said today.
Wegner said the court order is essentially the same as Ochoa’s January ruling which says that the state is acting in violation of federal mining laws, which are recognized as the supreme law of the land under the Supremacy Clause of the U.S. Constitution.
The court order states: “The court finds there is no triable issue of material fact 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 and then pursuant to Fish and Game Code section 5653.1 refusing and/or being unable to issue permits for years stands as an obstacle to the accomplishment of the full purposes and objectives of Congress under California Coastal Commission v Granite Rock Co (1987) 480 U.S. 572 and a de facto ban This de facto ban created by Fish and Game Code section 5653.1 on suction dredge mining permits has rendered commercially impracticable the exercise of plaintiffs’/petitioners’ mining rights as granted by the federal government.”
PLP was hoping for more teeth in the order to provide some “injunctive relief” for miners, Wegner said.
“The judge did not order the state to act,” Wegner said. “His order is the same as his ruling.”
In the meantime, New ’49ers and PLP are contemplating filing an injunction against the state of California in Ochoa’s court. The injunction would prevent the state from citing dredgers, to begin issuing dredging permits or both, Wegner said.
“Issue a permit or leave us alone,” Wegner said.
On May 5, the California Department of Fish and Wildlife posted on its website a notice warning dredgers that it is still unlawful to dredge, despite the May 1 court order: CDFW reminds the public suction dredge mining remains unlawful in California.
“The state is acting like the judge’s ruling doesn’t even exist when he ruled the state is preempted by federal law,” Wegner said. “They are totally disregarding his ruling ... They can’t do what they are doing and the state is doing it anyway.”
By Brad Jones
GPAA Managing Editor
... California Superior Court Judge Gilbert Ochoa has issued a long-awaited court order on federal preemption in the ongoing legal battle over the statewide suction-dredge mining ban since the original two-year “moratorium” was imposed in 2009.
The court order is follow-up to Ochoa’s ruling on federal preemption in January. The court order, dated May 1, 2015 was issued exactly one year after Ochoa ordered a Mandatory Settlement Conference between gold miners, the California Department of Fish and Wildlife and environmental groups.
Last May, miners packed the courtroom as a show of their opposition to the state’s illegal dredging ban, which even the judge called an “extraordinary scheme” by the state to keep suction dredge miners from obtaining a permit.
Public Lands for the People, one of the plaintiffs in the case, will issue an official statement on the court order tomorrow, PLP President Walt Wegner said today.
Wegner said the court order is essentially the same as Ochoa’s January ruling which says that the state is acting in violation of federal mining laws, which are recognized as the supreme law of the land under the Supremacy Clause of the U.S. Constitution.
The court order states: “The court finds there is no triable issue of material fact 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 and then pursuant to Fish and Game Code section 5653.1 refusing and/or being unable to issue permits for years stands as an obstacle to the accomplishment of the full purposes and objectives of Congress under California Coastal Commission v Granite Rock Co (1987) 480 U.S. 572 and a de facto ban This de facto ban created by Fish and Game Code section 5653.1 on suction dredge mining permits has rendered commercially impracticable the exercise of plaintiffs’/petitioners’ mining rights as granted by the federal government.”
PLP was hoping for more teeth in the order to provide some “injunctive relief” for miners, Wegner said.
“The judge did not order the state to act,” Wegner said. “His order is the same as his ruling.”
In the meantime, New ’49ers and PLP are contemplating filing an injunction against the state of California in Ochoa’s court. The injunction would prevent the state from citing dredgers, to begin issuing dredging permits or both, Wegner said.
“Issue a permit or leave us alone,” Wegner said.
On May 5, the California Department of Fish and Wildlife posted on its website a notice warning dredgers that it is still unlawful to dredge, despite the May 1 court order: CDFW reminds the public suction dredge mining remains unlawful in California.
“The state is acting like the judge’s ruling doesn’t even exist when he ruled the state is preempted by federal law,” Wegner said. “They are totally disregarding his ruling ... They can’t do what they are doing and the state is doing it anyway.”
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