San Bernadino update

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The New 49'ers :: Members Forum :: San Bernardino will decide our motion for an injunction

FYI From Dave mack
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Fri May 1 2015 )
San Bernardino Judge Ochoa today told our attorney, James Buchal, that he could not file for injunctive relief in Siskiyou County to prevent California Department of Wildlife (DFW) wardens from enforcing a suction dredge moratorium which Judge Ochoa decided is illegal, unconstitutional and unenforceable in a ruling several months ago. The judge says our motion for injunctive relief should be decided in his own courtroom. Here is a short update from our attorney: http://www.goldgold.com/wp-content/uploads/2015/04/Memo-Suction-Dredging-Status-4-30-15.pdf

The attorneys involved in the San Bernardino litigation are now working out a hearing date. The problem is that our attorney has scheduled a trip abroad and will be absent for about three weeks beginning shortly after mid-May. While he is pushing for the hearing to take place before he departs, there is a chance the hearing will have to wait until mid-June.

We were hoping for injunctive relief as early as next week. Now we will have the wait a while longer.

The good news is that the hearing will be in front of Judge Ochoa who undoubtedly has more knowledge about California's suction dredging situation than any other judge in California; has already ruled that California's moratorium on suction dredging is an unlawful scheme to thwart the will of congress; and he suggested today that he is inclined to grant us the relief we are asking for -- but for due process purposes, would like to conduct a hearing on the matter with all parties present.

Therefore, the existing status quo has not changed. Prospectors believe Judge Ochoa's Ruling allows us the right to operate our dredges. DFW wardens warn that they will be out seizing dredging gear that is in violation of the unconstitutional moratorium. This situation is like something out of a science fiction story!

I am not a licensed attorney, so I cannot provide legal advice. All I can do is present my own opinion based upon my personal observations from following the chain of events: Since the State clearly does not want the "enforcement of an unlawful moratorium" issue in front of our local Superior court, my best guess is that the wardens will not issue criminal citations if dredgers refuse to sign them -- because that would trigger an arrest which I believe requires a hearing in front of a local judge within 48 hours. To date, my understanding is that the wardens have not issued a single citation to dredgers who made it clear they would not sign them.

If they issue a citation which the prospector is willing to sign, I seriously doubt the citation will ever be prosecuted, since the moratorium has already been found illegal.

So my own opinion is that the likelihood of criminal liability for operating a suction dredge in California is very low at the moment, even though the State authorities may come out and make it sound like you are in a lot of trouble.

However, at least until Judge Ochoa grants us the relief we are asking for (hopefully in June or before), chances are that the wardens will be seizing mining gear from dredgers out on the river when they find them/us. And it appears there is no due process available for us to make that stop.

If the relief we are requesting is granted, the court will order all seized equipment to be delivered back to the dredgers it was taken from.

So if I were personally going to operate a dredge while we wait for San Bernardino to act, and I might; I would choose a place that is out of sight. Even better, a place that is difficult to access. Even better, in a place where it would be difficult to seize equipment. On matters like this, each of us must make our own choices and live by the consequences.

If you intend to operate a suction dredge on properties controlled by The New 49'ers, please be mindful that we are already aggressively enforcing our own recently adopted Emergency Dredging Rules.

 

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The Buchal letter from above http://www.goldgold.com/wp-content/uploads/2015/04/Memo-Suction-Dredging-Status-4-30-15.pdf

MEMORANDUM
CONFIDENTIAL
ATTORNEY
-
CLIENT
PRIVILEGED COMMUNICATION
T
o:
The New 49’ers Legal Fund
From:
James L. Buchal
Date:
April 30
, 2015
Re:
Suction Dredging Status
As the Fund is aware, miners in Siskiyou County have attempted to accelerate the
question of the right to dredge by getting arrested and putting the matter before a judge
immediately. The Department has instead elected to seize equipment and issue citations
for hearings months away. Some of the miners have refused to sign citations promising
to appear, resulting in only warnings, or equipment seizures. We remain under the
impression that the Department is reluctant to arrest anyone in fashion that would give
them an immediate hearing in front of a judge, though that could change. We
also remain under the impression that the Siskiyou County District Attorney is not willing to
prosecute the citations, though that could change too.

In light of the inability to get a local judicial ruling through arrest, The New
49’ers, Inc. organized (and funded) a proposed civil action in Siskiyou County to try and
get injunctive relief for their members against Department enforcement. When the
Department learned of the action (I was required by rule to give them notice), the
Department demanded an immediate hearing before Judge Ochoa to stop the action,
which occurred this morning. The papers I filed before Judge on behalf of The New
49’ers Ochoa (which include drafts of the Siskiyou County pleadings)
are available
online at: http://www.goldgold.com/wp-content/uploads/2015/04/Initial-Response-to-States-Ex-Parte-App-4-29-15.pdf

2
In chambers, I reiterated that the Department was proposing to prevent
“plaintiffs” from filing any action, but that the plaintiffs in the proposed Siskiyou County
action were not even before him. The Judge began to appreciate the difficulties with
enjoining parties not before him at all. He asked the Department
for language, and the Department proposed to enjoin any of the members of any of the plaintiffs, which would
pick up members of all the entities in the San Bernardino cases.
I told the Judge that unless and until relief were entered, other miners would
continue to file for relief. Judge Ochoa stated that although he had been tempted to sign
our form of proposed order on the motions for summary judgmentthat had been granted
back in January, granting relief against Department enforcement, he ultimately concluded
that there might be “due process” problems because there hadn’t been enough of a
hearing on the form of relief. He said that he had signed the State’s form of order on the motions for summary
judgment, and indeed had already signed it, though it has not yet been released. (This
form of order is “plain vanilla” and just states that the mining interests prevailed on all
the motions for summary adjudication). At this point, I told him that in light of his commen
ts about providing due process, I was inclined to re-tool the Siskiyou County papers (see Exhibits 1-4
to the above hyperlink) and bring the question of injunctive relief against the Department directly
before him. The Judge demanded that we work out a schedule with Mr. Solomon to
accommodate a hearing for relief from Department enforcement, allowing the Tribal and
environmental parties a full opportunity to participate.

In sum, I believe that, thanks to the pressure of The New 49’ers and their
members, we have finally convinced the Judge that he needs to address the question of
relief, and that we have a reasonable chance of getting him to act on his “temptation” and
grant us the relief. I will confer with the Department tomorrow morning concerning scheduling of such a hearing and
report further. Thank you for your continuing support of those clients in the San Bernardino
litigation who have been unable to pay their bills. I think we are now closer to getting
some relief for a 2015 season.

 

[Hoser John]

That giant flushing sound is your rights going down the toilet along with 7 years of pain,agony and suffering with piles of cash thrown in. Federal premption in place-check,Rinehart ready for the Supreme Court-check-then Judge Ochoa waiting for Supreme Court ruling to rule on the 7 cases-check. All the ducks in a row nice and clean and NOW blown outta the water as MUST have more cash now by hyping memberships........sic sic sic greed-John

 

[goldenIrishman]

Personally if I was a dredger in Californicate I'd go ahead and do my thing. If they try to cite me, I'd make sure that they had no choice but to arrest me. These people have got to learn that they work for us and that we will no longer sit by and let them run things as they see fit. By getting arrested, that would force the issue into a court and then they would loose. Try to take my gear and you'll have to make me in along with it. I'd be willing to het that they would just walk away without writing you up OR taking your gear. The last thing they want is an honest confrontation in a court of law because they know they will loose!

 

[kayakpat]

I can understand the frustration of this just dragging on, it is hard when you are stuck in limbo

 

[fowledup]

If a person refuses to sign a citation and is arrested for non compliance, and the individual decides to stay in jail until his court hearing on the matter, wouldn't the court hearing be for the infraction of not complying with an LEO's order and have absolutely nothing to do with the original citation? Just asking? I'm glad Ochoa seems to be the type of judge that remains focused on the merits of the law and not the antics of the groups he is ruling on! Next time you all decide to "show em" have a fricken plan in place for what your actually trying to accomplish for Petes sake. Once again we, as a whole look like clueless rogue idjits charging windmills rather than a unified, educated, and organized group. Either ALL IN or all out.

 

[jcazgoldchaser]

If a person refuses to sign a citation and is arrested for non compliance, and the individual decides to stay in jail until his court hearing on the matter, wouldn't the court hearing be for the infraction of not complying with an LEO's order and have absolutely nothing to do with the original citation? Just asking? I'm glad Ochoa seems to be the type of judge that remains focused on the merits of the law and not the antics of the groups he is ruling on! Next time you all decide to "show em" have a fricken plan in place for what your actually trying to accomplish for Petes sake. Once again we, as a whole look like clueless rogue idjits charging windmills rather than a unified, educated, and organized group. Either ALL IN or all out.

You are exactly correct. Numerous charges of "resisting arrest" back east to unlawful orders.

They have the funds, they'll simply continue the fight.