update on dredging law cases

[Fullpan]

PLP has just announced the Calif. Judicial Council has approved the consolidation of the six cases to be heard in San Bernadino.
This is another small step forward for calif. dredgers - many steps ahead.

 

[Hefty1]

Are these all Taking Cases? Then you should read this! 20 yrs later and still going

Hage v. United States

• Appeals Court Overturns Hage
  
  
  News & Updates | August 22, 2012
  Plaintiffs Have Until September 10[SUP]th[/SUP] to File for Rehearing
  
  
  On July 26, 2012, the U.S. Court of Appeals for the Federal Circuit in Washington D.C. overturned the landmark takings case of Hage v. United States. The case was filed in 1991 by the now deceased Wayne and Jean Hage after the U.S. Forest Service and Bureau of Land Management had regulated the family out of business. It was the first Fifth Amendment takings case filed in America seeking to protect the property rights of western ranchers on federal lands.
  In 2008, Senior Justice Loren Smith of the U.S. Court of Federal Claims found in favor of the Hages and issued a precedential ruling determining that the federal government had taken the Hage’s water, rights of way and range improvements without just compensation through both regulatory actions and physical takings of the property. The Claims Court reached this decision after conducting two extensive trials, multiple hearings and re-hearings, reviewing numerous briefs and even conducting a site visit to the Hage’s ranch.
  It was a 17-year process for the lower court to thoroughly review everything from title documents to agency personnel testimony and testimony from Wayne Hage before his passing. Ultimately, the court found that the federal agencies had crossed the line in regulating the Hages through the grazing permit system which led to the taking of their rights without compensation. The court originally awarded $4.4 million for the property plus interest, and attorney fees.
  The government appealed the decision to the Federal Circuit. After reviewing the appeal briefs and conducting a short 30-minute hearing, the Appeals Court overturned a part of the Claims Court ruling and remanded other parts back to the lower court.
  During the Appeal hearing, the three-Judge panel directed their questions at whether or not the plaintiffs should have applied for a special use permit to clean their historic ditches which pre-dated the creation of the National Forest. Judge Smith with the Claims Court ruled the permit was not necessary and would have been futile for Hage to apply for one given the conduct of the agencies towards the Hages on similar issues.
  The Forest Service insisted that maintaining the 28-plus miles of ditches through Nevada’s rugged terrain would only be allowed if the maintenance was done with hand tools. The lower court found this restriction made clearing the ditches prohibitive and therefore prevented the Hage’s water from reaching the private meadows. The Appeals court disagreed.
  “The Appeals Court decision reads very similar to the government’s briefs filed in the case,” commented Margaret Byfield, daughter of Wayne and Jean Hage and executive director of American Stewards. “Where the lower court very carefully examined the facts and went to great effort to understand not only the law, but how the western grazing lands function, the Appeals Court deferred to the government’s position. It is very unfortunate that the facts determined by the lower court, as well as, its ruling were so easily and eagerly dismissed.”
  In anoth
  
  er part of the ruling, the Appeals Court found that even though the Forest Service had fenced off one of Hage’s critical springs, this was not a physical taking because the fences were only up for five years and some of the water flowed out of the fenced area where the Hage’s could access the water.
  In contrast to this ruling, the lower court recognized that the Hage’s held two court decrees and final adjudication from the state of Nevada determining that they own the full use of the water at the point of diversion, which was the spring itself. Judge Loren Smith, who issued this ruling, recognized that the states, not the federal government, determine the extent of a water right so he deferred to the state’s position that the Hages owned the right to use all the water.
  The Appeals Court rationalized its reversal by deciding that since Hage could use some of the water, the government’s action did not result in the physical taking of the water right.
  The court’s ruling opens the door for the federal government to fence off any private citizen’s water right that resides on the federal lands and take whatever they want without paying compensation. In this case, the Forest Service had fenced off Hage’s spring in order to pipe the water into their ranger station for their domestic use. “What is most outrageous about that is the Forest Service holds a water right on a different spring that is closer to their station for this very purpose. They did not need to take our water. It was done to create a controversy they believed they could get away with, and the Appeals court just let them do so,” stated Byfield.
  Attorney, Lyman Bedford with Clausen Law Group (who successfully litigated the lower court ruling along with Mike Van Zandt with Bridgett Hanson) has recommended to the executor’s of the Hage estate that they file for an en banc review or a rehearing before the Federal Circuit, the filing for which must be done by September 10, 2012. If this fails then he has recommend they prepare a Cert petition to the Supreme Court.
  “We are not too surprised by the Appeals Court decision after hearing the questions raised during arguments. We have always believed that this case had a very high chance of being heard in the Supreme Court,” Byfield continued. “It is a very important case with high stakes on both sides. If we ultimately prevail, the federal government will be restricted from over-regulating western landowners and western property rights will finally have protection from unconstitutional takings by the federal government.”

 

[russau]

just another very important reason why our gubermint employes need to be rained in because they are out of controll for the most part!! and im thinking this way of thinking goes all the way to the White House where the buck stops!

 

[Jason in Enid]

Got to find a way to keep the tree-hugging-hippies out of the FS and govt postitions and get people with COMMON SENSE in there. Honestly, so much of what they are doing seems like it is aimed strictly as tormenting landowners / ranchers / miners, etc. for personal pleasure.

 

[Gravel Hog]

Are these all Taking Cases? Then you should read this! 20 yrs later and still going

20 years is a long time just to get to a decision. And here I thought 2016 was too long until they removed that hope.

I think the word - never - comes to mind when reviewing the status of suction dredging here in Cal.

Just in my inbox from Markie Stop-her...

Interested Parties:

As the end of 2012 draws near I have been receiving regular inquiries whether the Department of Fish and Game will be selling permits in January 2013. Here is where things stand in the moment.

First, the statutory moratorium on instream suction dredge mining in California and the issuance of related permits by the Department remains in effect. (Fish & G. Code, § 5653.1.) This is true even though the Department adopted new regulations governing its permitting program and the Office of Adminstrative Law approved those regulations in April 2012. You can access those regulations at http://www.dfg.ca.gov/suctiondredge/. The statutory moratorium overrides the new regulations and the authority of the Department to sell suction dredge permits.

The moratorium, as updated with the enactment of SB 1018 in June 2012, directs the Department to take specific actions and submit a related report to the California Legislature on or before April 1, 2013. SB 1018 provides in particular:

“[T]he department shall consult with other agencies as it determines to be necessary, including, but not limited to, the State Water Resources Control Board, the State Department of Public Health, and the Native American Heritage Commission, and, on or before April 1, 2013, [it] shall prepare and submit to the Legislature a report with recommendations on statutory changes or authorizations that, in the determination of the department, are necessary to develop the suction dredge regulations required by paragraph (2) of subdivision (b), including, but not limited to, recommendations relating to the mitigation of all identified significant environmental impacts and a fee structure that will fully cover all program costs.” (Fish & G. Code, § 5653.1, subd. (c).)

The Department has begun its effort to comply with this requirement and expects to submit its report to the Legislature on schedule. It seems reasonable to assume the Legislature will take no further action related to suction dredging under the Fish and Game Code until the Department submits its report next spring. The Department assumes for the same reason that the current moratorium will remain in effect until at least that time.

Many of you know related litigation continues. Six of thirteen actions filed against the Department since May 2005 remain pending. These cases were originally filed in Alameda, San Bernardino, and SiskiyouCounties. In a recent development, on October 25, 2012, the Judicial Council of California issued a order signed by Chief Justice Cantil-Sakauye. The order directs and authorizes the Presiding Judge in San Bernardino County Superior Court to assign a trial judge in San BernardinoCounty to oversee and address all six pending actions as a single, coordinated proceeding. Until that happens, further proceedings in the litigation are stayed by court order and the California Rules of Court. The Department expects no developments in the litigation until the assigned trial court judge holds an initial case management conference in the coordinated proceedings at some time in the next couple of months. At some point in the future, the Court could take an action which affects the moratorium but that seems unlikely to happen for at least a few months. The Department cannot predict when or how the Court will rule on any of the challenging issues before it.

I hope this information is useful to you.
Mark Stopher
Senior Policy Advisor
California Department of Fish and Game
601 Locust Street
Redding, CA 96001

voice 530.225.2275
fax 530.225.2391
cell 530.945.1344
mstopher@dfg.ca.gov

 

[Hefty1]

Hey Gravel...
Just what does that note from Stopher say to you... or to anybody??




Ha Ha Ha I got my job for a few more years...

 

[Gravel Hog]

Hey Gravel...
Just what does that note from Stopher say to you... or to anybody??

It says to get used to it as in it ain't never going to happen. Tied up and drawn out forever and ever.

If ya go by the new regs, many a methods don't reguire DFG permit or any permission. Details need not be mentioned on public forums, just use your own ingenuity, and don't blab it about.

 

[Hefty1]

 

[Aurabbit79er]

It is a very sad situation that has been forming for years now. We the People is now under the thumb of We the Powerful, which includes the overt control of the government that is no longer for We the People. The entire world is falling backwards. It is reminiscent of the early Industrial Pre-Union era. When the Government and big business could do and take what ever they wanted in the name of Who's going to stop us.
I love my country and my people and my form of government, it's the crooked, Back stabbing, self serving Non humans We let in to Government that I hate.
Don't forget to vote.
Frank Zappa was once heard saying, and I believe it "There my not be someone to vote for, but there is always someone to vote against."

 

[vini]

I just have a hard time with me hiding as an option here, more needs to be done to open this issue up, more needs to be done to push the issue into a hot topic.
I'm thinking more publicity, more court appearances, law suits and such, make it an issue FORCE IT.

It is pathetic whats become of california hell im not even capitalizing it anymore i've lost the love........

BUT i have not lost hope, these cases are of great importance and just getting them moved has been a huge accomplishment, theres hope fellers don't let that go or your nuthin but a sinking ship destined to the bottom believe me i feel it at times then i remember how things are supposed to be and that something to fight for and i get a second wind in all this, NEVER GIVE UP i'd rather get shot down dead then give up at this point....

 

[Jason in Enid]

It doesn't matter how many of us stand up and scream. The liberal judges will rule in favor of the liberal wackos.

 

[Goldwasher]

It so totally does Matter!!

 

[gold nuggets]

It doesn't matter how many of us stand up and scream. The liberal judges will rule in favor of the liberal wackos.

Sad to say, but that is the attitude that got most of the enviro/wacko laws passed in the first place. People just didn't react until the laws that were passed got into their pocketbooks...by then it was too late. So now, it is now gonna be an expensive, uphill battle to overturn the bad laws and regulations. JMHO

 

[Jason in Enid]

No, the enviros got the FS to change rules and got the judges to side with them. There was no input from miners until after the fact. And yes, it is now an expensive, uphill battle. Protests STILL won't matter because it's up to the judges to overturn lower rulings and it's highly unlikely. The only thing we can do is financially support groups like PLP who are doing the fighting.

Do the hikers/hunters/fishers have any input when they show up and find thier roads blocked and locked making it illegal to use them? Do you not think that if this were advertised before hand and discussions heard that it would EVER have been allowed to occur?

 

[Fullpan]

That is the point of trying to get Judge Alvarez in San B. to hear all the cases. He is supposed to be more pro-mining - we'll see in the next 12 months.

 

[vini]

Its progress guys, progressively government takes over little by little unseen at first, then one days EVERYONE will feel it hit them personally, so we're the first in line fighting, many ahead will be fighting for there rights too, and i am so happy those cases got moved, theres a chance in hell now .

 

[Gravel Hog]

Good thing there ain't no calendars or clocks in hell... going to to a long long time... 2013 going on year 4.

 

[Fullpan]

GH, you might know of the Idaho-Maryland mine's attempts to re-open in Grass Valley, Ca. This is a major corp. who has had to kiss everyone's **s, promise hundreds of concessions and incentives to all agencies and groups. They've been at it since 2005 - haven't given up yet.

 

[Oakview2]

That is the point of trying to get Judge Alvarez in San B. to hear all the cases. He is supposed to be more pro-mining - we'll see in the next 12 months.

We don't have to have a pro-mining judge, but it sure wouldn't hurt. What we can't afford was to ship this up to Alameda county or where ever they were trying to change the venue to, and put us before those knuckleheads and fruits and nuts. It my understanding that there proposed venue site has almost no claims in its jurisdiction, the judges in this court are about as liberal as the left coast has to offer, and jury of your peers will more than likely arrive in a Preuss, be drinking glacial spring water, after soaking in there old growth redwood hot tub, spouting how they are going to save the earth. I believe this ruling will give us a fair shake in front of a impartial court and jury pool. Let the games begin. I note of warning to logging, fishing and hunting and oil exploration. YOU ARE NEXT, THERE IS NO STICKING YOUR HEADS IN THE SAND. THEIR AGENDA WILL CONTINUE THIS UNTIL THEY PURGE ALL PERCIEVED EVIL FROM THE PLANET.... JMHO

 

[63bkpkr]

Yes, it is very important that we care and continue to fight/argue/support/write/show up/VOTE. Look what just happened, so many people did not vote or threw their votes away and the choices for president were limited but folks should have looked at reality as there were only two choices. Even with that said "we the people" the Republicans And the Democrats have let this country down. This same sort of tragedy will happen with OUR prospecting if WE do not continue to fight to force a change.

IMHO.........63bkpkr