Appeal for injunction filed

[ratled]

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

 

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[Clay Diggins]

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.

 

[ratled]

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

 

[Clay Diggins]

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

 

[IMPDLN]

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

 

[Hoser John]

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

 

[2cmorau]

Officials may ease regulations in area used by dredge miners

never could understand the MaCracken strategy, met him only once, not impresssed

 

[fishnfacts]

Wow, I never knew the EPA regulated the mining industry. I always thought it was the government and local state.

 

[Jeff95531]

Yep. Just another layer of many.

 

[ratled]

Motion filed filed today 8/11/15 for summary reversal/calendar preference by appellants

ratled

 

[winners58]

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
.