• Suction dredging cases move to  appeals

• By David Smith dsmith@siskiyoudaily.com

  Siskiyou Daily News, Yreka, CA

  By David Smith dsmith@siskiyoudaily.com

  Posted Oct. 25,  2013 @ 9:24 am

Two suction dredge mining suits in the California court system have  been dealt serious blows in recent months, but attorneys in both cases will soon  be arguing appeals on issues of constitutionality and harm caused by miners’  inability to use suction dredges in the state.

The first case, which consists of a number of consolidated cases  from across the state – including one that originated in Siskiyou County – was  recently handed a judgement from Judge Gilbert Ochoa that will keep miners from  using suction dredges in the state for the foreseeable future.

According to Los Angeles attorney David Young, Ochoa denied the  preliminary injunction on a number of counts, opening up the possibility of an  appeal, which he said will be made on the basis of an argument that “irreparable  harm” will result without the injunction.

With the act of suction dredging a misdemeanor without a permit, and  permits currently not being released by the California Department of Fish and  Wildlife, Young said that his tact will be arguing that the threat of criminal  prosecution – and carrying through on that threat – constitute irreparable harm  to miners in California.

The theories Young advances in his appeal are interwined with a  second case, which is an appeal of the criminal conviction of Brandon Rinehart.  According to Rinehart’s attorney James Buchal, the appeal was planned to be  filed in the Third Appellate District of California on Thursday.

Buchal’s appeal, made available to the Siskiyou Daily News, calls  for the reversal of Rinehart’s conviction on a charge of using a suction dredge  without a state permit and operating a suction dredge within 100 yards of an  area closed to suction dredging by the state.

Buchal argues in his appeal – as well as in the lower court – that  Rinehart’s ownership of a federal mining claim and federal mining permit  preempts the state’s authority to prevent him from mining through the use of  statutes.

“Here, the federal government has not merely expressed some general  policy in favor of mineral development,” the appeal states. “It granted  [Rinehart] specific property rights in specific, federally-owned ground, and the  State’s interference with this scheme is simply not permitted under the  Supremacy Clause of the U.S. Constitution.

“[Rinehart] does not dispute the State’s right reasonably to  regulate his mining activities, but requiring a permit and then categorically  refusing to issue permits is not reasonable, and not  constitutional.”

The appeal goes on to argue that the lower court erred in  disallowing evidence that Rinehart’s only economically-feasible method of mining  his claim was suction dredging.

Young, who has already submitted his appeal, said that his arguments  will likely mirror those in the Rinehart case. He added that by Nov. 22 he will  also be submitting requests for summary judgement in his case, asking Ochoa to  issue judgement on the federal preemption issue, among others.

Read more: http://www.siskiyoudaily.com/article/20131025/NEWS/131029790/1006/NEWS#ixzz2j8KFev5V