Appeal for injunction filed
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Thread: Appeal for injunction filed

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  1. #1

    Feb 2014
    888
    2217 times
    All Types Of Treasure Hunting

    Appeal for injunction filed

    An appeal for the injunction in favor for the miners was filed in the 4th Court of Appeals. You can read all of the supporting documents on the original thread

    The New 49'ers :: Members Forum :: Motion for Summary Reversal filed in the 4th Appellate


    ratled
    Oakview2 and Reed Lukens like this.
    Never confuse motion with progress


    Illegitimi non carborundum

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  2. #2
    Charter Member
    us
    Nov 2010
    The Great Southwest
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    Doing the same thing over and over and expecting different results?

    Irreparable harm is a slippery slope in appeals. You need to prove irreparable harm is likely in the absence of an injunction. Getting older is a fact of life and prior physical injuries can not be repaired by a court ruling. That kind of harm may or may not be irreparable but the court has no way to connect the forces of nature and circumstance with the relief sought in the consolidated cases. Loss of income is not irreparable harm.

    Appeals courts are not the place to make a record since they are only going to consider evidence provided in the court of original jurisdiction. Trying to up your game at an appeals hearing? There are no "do overs" outside of the court of original jurisdiction. The lawyers know that even if the miners don't.

    I've read the declarations of the plaintiffs in the appeal. Their declarations read very much like an appeal for mercy from the court. That might be helpful but the place to make applications for mercy are in the court of original jurisdiction, not in an appeal of the court's rulings. I would agree that they are due some mercy after all this time. Read the transcripts of the Injunction hearing, the lawyers are asking the Court to extend the case beyond the five year limit and the judge is saying he wants to finish the case as soon as possible. Perhaps the plaintiffs should ask their lawyers for mercy?

    If the plaintiffs wanted to establish a right they should have established that right in their original pleadings. Not one of the original plaintiffs in the consolidated cases even alleged they had perfected their locations. Without a perfected location they could only enforce their possession against other locators.

    This is not a case about infringement of the claim owners possessory rights against subsequent junior locators. The "rights" the plaintiffs have relied on are not applicable to government takings. Wrong plaintiffs and wrong argument.

    As I've stated before if it weren't for Judge Ochoa taking the bull by the horns and raising the issue of permitting that is unavailable being the same as a ban on mining the consolidated dredging cases would still be waiting for their first win. He made it clear that he had had enough of the takings argument no matter how pretty you dress it up. Now you want to complain to his boss you think he did a bad job?

    Sure... piss off the only judge that has done you right.

  3. #3

    Feb 2014
    888
    2217 times
    All Types Of Treasure Hunting
    Two things Clay - one there are special provisions in the law for those over 70 seeking harm. Two we have to exhaust our state remedies before we can go to federal. This is the next step in the process, just following the "rules".

    I know it is kind of asinine to think the state could make a rule that it's own court found unconstitutional to follow that order when it's true objective the banning of all mining in the state but another appellate court has already made it's thoughts very clear on the subject. Yes I do know that it has been depublished as part of the SCoCA case but you really can't unring the bell on that one. In the off chance this hits we are back in the water while this works it's way through further.

    The above are procedural not strategical, to go on further could enter the strategical and I won't go there but I know you are smart enough to figure it out from here

    ratled
    Last edited by ratled; Aug 08, 2015 at 01:20 PM.
    Never confuse motion with progress


    Illegitimi non carborundum

    __________________
    ███ ████ everything ████ ███ ███████ ██ is ███████ fine █████.
    ███████ ██ ████ trust █████ your █████ ███ government.

  4. #4
    Charter Member
    us
    Nov 2010
    The Great Southwest
    3,750
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    A strategy of making an appeal on an unwinnable theory so you can appeal with the same unwinnable theory in a higher court is an incredible waste of time and money. Exhausting your remedy on a losing cause has the same result as moving on to something winnable without the expense and disappointment of constant failure. Yes you have a right to timely appeal just as you have a right to wear dirty underwear. Having that right doesn't automatically make it a good idea.

    As far as the appeals decision in Brandon's case - that bell is definitely unrung until the State Supreme Court says otherwise. The Ochoa court simply can't rely on an unpublished decision from another venue. If the Supreme Court agrees that Federal preemption is a consideration in Brandon's case then it's game on - for Brandon. The consolidated dredging cases won't be waiting for an appeal in Brandon's retrial.

    The dredgers will get their chance to present their arguments for harm in January. Judge Ochoa has already stated on the record in the Injunction hearing "I'm not disputing that harm is occurring to your clients. That much is obvious." The fact that the 49ers can't get it through their heads that monetary damages are not "Irreparable Harm" under the law doesn't make the Judge wrong or his decision subject to a win on appeal.

    You can't force the issue in the Ochoa court before the trial in January no matter how many appeals you file. The simple fact is that new evidence is not going to be admitted in appeals. You can however delay that trial with constant appeals. Delaying the outcome past the five year mark doesn't seem like it's in the best interest of dredgers in my opinion.

    A summary adjudication on a cause of action is not a judgement. Judge Ochoa had to remind your lawyer of that fact and the fact that the court already has heard testimony from the plaintiffs that refutes the claim that the damage is more than monetary or inconvenient in nature. I'm pretty sure Mr. Buchal got the import of that exchange even if his clients didn't.

    You are stuck with the plaintiffs and their sworn statements in the record of the case. You can't refute what has already been established by your own testimony. Trying to switch rafts (legal theories) in midstream is a big no no and I'm sure that at least Mr. Buchal understands that.

    Why the 49ers would continue to waste the time and money of donors on these so called strategies when they should be using their resources to prove their claims in January is something that should probably be explained in better terms than the usual "it's a secret but trust us it's for your own good".

    After more than four years of asking for money from miners with no results but those produced by Brandon's separate cause I'm of the opinion that "it's a secret" just isn't good enough any more. The 49ers and the PLP have a win record of zero at this point - great strategy. I hope for your sake the 49ers donors aren't thinking the same thing. You are going to need their continued support in January - or whenever the 49ers get around to deciding their "strategy" should allow the trial to start.

    Just one man's opinion

    Heavy Pans

  5. #5
    us
    Mar 2014
    Central Arizona
    Minelab SD2100 V-2, Gold Bug SE, SDC2300, GPX4500
    218
    430 times
    Prospecting
    I'd have to agree with Clay. Flogging a dead mule from a different direction won't bring it back to life. Time for a new plan of action, a long time ago. Dennis

  6. #6
    us
    Mar 2003
    Redding,Calif.
    5,854
    6701 times
    All Types Of Treasure Hunting
    Keith Walker filed his motion to the state. Been on vacation but will post asap as now reduced to pure legalese, down from 800+ to 12 so fileable..John
    Clay Diggins likes this.

  7. #7
    us
    My Hearts Desire

    Nov 2010
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    Officials may ease regulations in area used by dredge miners

    never could understand the MaCracken strategy, met him only once, not impresssed
    Clay Diggins and Hoser John like this.
    The enemies of liberty will not rest, and neither can we.

  8. #8
    us
    Ron

    Mar 2014
    Chicago, Il. Northside
    BH Disc 2200
    183
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    All Types Of Treasure Hunting
    Wow, I never knew the EPA regulated the mining industry. I always thought it was the government and local state.

  9. #9
    us
    FIRE...Financially Independent Retired Early. Poor but free!

    Feb 2013
    Deep in the redwoods of the TRUE Northern CA
    Teknetics Alpha 2000
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    Yep. Just another layer of many.
    We don't fight for gain. We fight for what is rightfully ours.

    Just another supporter of Land Matters http://www.mylandmatters.org/ The one stop place for mining matters on public lands!

    CA prospectors check here http://www.mylandmatters.org/Donate/Gift1.html

    A recent study found that there are just too many studies being done.

  10. #10

    Feb 2014
    888
    2217 times
    All Types Of Treasure Hunting
    Motion filed filed today 8/11/15 for summary reversal/calendar preference by appellants

    ratled
    Never confuse motion with progress


    Illegitimi non carborundum

    __________________
    ███ ████ everything ████ ███ ███████ ██ is ███████ fine █████.
    ███████ ██ ████ trust █████ your █████ ███ government.

  11. #11
    Make America Great Again

    Apr 2013
    Oregon
    1,650
    3795 times
    All Types Of Treasure Hunting
    the Kimble appeal was on a stay because of the coordinated cases then after the Judge issued his preliminary ruling
    Kimble dropped the appeal. but now its listed as Kimble just dropped it as if he couldn't win and the judge used it against the latest injunction.
    docket from Kimble appeal;
    California Courts - Appellate Court Case Information
    .
    Docket from the latest appeal by the new49'ers;
    California Courts - Appellate Court Case Information
    .
    " A pessimist is an optimist with experience "

 

 

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