Legal update from our friends at Western Mining Alliance (WMA)

We were notified by Pacific Legal Foundation the U.S. Supreme Court has requested the opinion of the U.S. Solicitor General in the Rinehart Case.

So what does this development mean? The U.S. Supreme Court accepts cases based on Rule 10 of the U.S. Supreme Court:

Rule 10

“Review on a writ of certiorari is not a matter of right, but of judicial discretion. A petition for a writ of certiorari will be granted only for compelling reasons. The following, although neither controlling nor fully measuring the Court’s discretion, indicate the character of the reasons the Court considers:

(a) United States court of appeals has entered a decision in conflict with the decision of another United States court of appeals on the same important matter; has decided an important federal question in a way that conflicts with a decision by a state court of last resort; or has so far departed from the accepted and usual course of judicial proceedings, or sanctioned such a departure by a lower court, as to call for an exercise of this Court’s supervisory power;

(b) a state court of last resort has decided an important federal question in a way that conflicts with the decision of another state court of last resort or of a United States court of appeals;

(c) a state court or a United States court of appeals has decided an important question of federal law that has not been, but should be, settled by this Court, or has decided an important federal question in a way that conflicts with relevant decisions of this Court.”

The Statistics

Practically speaking the U.S. Supreme Court accepts very few cases. In the 2005-2006 term 8,517 cases were submitted, the Court agreed to hear only 78, or slightly less than 1%.[1]

When we look at statistics the first step in deciding whether they’ll review a case is known as the “Call for Response.” This indicates at least one of the justices has found the case interesting enough to request a response from the defendant. In the Rinehart case the defendant is the state of California. The U.S. Supreme Court has already issued for call for response from California and California has received their response.

Pacific Legal Foundation has already responded to the response.

Back to statistics – of the 8,517 cases petitioned in 2005-2006 only 200 calls for response were issued.[2]

From research the grant rate for a petition in which the Court has called for a response increase from 1% of petitions to 8.6%. Interestingly, when the State is the respondent and files a response the grant rate then increases 16 fold.[3]

The next step in the process is the Call for Views of the Solicitor General of the United States. Under this step the Court officially asks the Solicitor General what his opinions on the case are. The response from the Solicitor General is issued as a briefing.

In the California Supreme Court the U.S. Solicitor General (under the Obama administration) issued a briefing which said California could ban dredging and not run afoul of federal preemption.

The U.S. Supreme Court has now asked the U.S. Solicitor General whether they would like to re-evaluate this position.

To issue a call for views of the Solicitor General all the justices must vote on it and at least 4 must agree. For the 2005-2006 term the U.S. Supreme Court issued only 12 calls for views of the Solicitor General.[4]

When the Supreme Court issues a call for views of the Solicitor General the grant rate of the petition increases to 42%.[4]

Interestingly when the U.S. Solicitor General responds the court follows their advice 80% of the time.[5]

In other words the Rinehart case is now the decision of the United States Solicitor General. If the Solicitor General issues a brief which says the Court should grant Rinehart’s petition then its probable Rinehart will be headed to the U.S. Supreme Court.

As mentioned it’s less than 1⁄2 of 1% of all cases the Court will even request the opinion of the United States. Rinehart has passed that hurdle.

In fact, the Rinehart case is now one of a very very small group of cases which could be heard by the Court.

Pacific Legal Foundation has already submitted a letter to the Solicitor General, and we will be drafting letters for Congressional signature. PLF has requested we don’t flood the Solicitor General’s office with letters. We’ve got that part covered with very focused and tailored letters.

WRITE A LETTER!

What you can do is write a letter to the Trump administration requesting they support Rinehart’s petition and make them aware of the issue. You can write to:

President Donald J. Trump 1600 Pennsylvania Ave NW Washington DC 20500

Director Ryan Zinke Department of the Interior 1849 C Street NW Washington DC 20240

Don’t under estimate the power of the written letter. We’ve battled long odds to get here your letter counts at this pivotal time.

Please don’t write the Solicitor General, we need to follow the advice of PLF.

Use your own wording, we’re not promoting a form letter here, just some general text and some points to cover. Keep your letter short (one page, two at most) and be very respectful.

Suggested Points to Cover:

Dear President Trump;

The U.S. Supreme Court has recently requested the views of your Solicitor General in an important case to

American mining.
The case is Rinehart v. the state of California, 16-970.

Brandon Rinehart, the petitioner, is a young father and electrician. He was cited and convicted of mining on his federal mining claim despite having done the exact same type of mining under a permit for years. The State cited him for mining without a permit, even though the State refused to establish a permitting system.

The miner was operating on a legal federal mining claim and the issue before the California Supreme Court was whether federal laws promoting mining could be superseded by state environmental laws which prohibit mining.

The California court ruled a federal mining claim only grants the miner a possessory interest, but no right to mine the claim was ever intended by Congress.

If left standing this ruling has the potential to effectively end motorized methods of mining in California. Recently the state of Oregon also imposed a ban on motorized mining similar to the California ban, this case is pending before the 9th Circuit Court of Appeals.

The United States now has the opportunity to reverse this decision and re-establish federal supremacy over federal lands and the use of those lands. The use of those lands is solely reserved to Congress and for over 150 years miners have operated under the 1872 Mining Law which encourages and promotes the extraction of minerals.

I hope your administration will support the petition of Brandon Rinehart and support the ability of thousands of small-scale miners to resume legal mining on their claims.

Respectfully,

We’re about 6 weeks from trial.

On July 12th, in San Bernardino, Judge Ochoa will hear arguments in the CEQA case and the Walker Case.

The Walker Case

Keith Walker, a dredger from Sonora, has challenged the constitutionality of AB 120 and SB1018, the two laws which extended the dredging ban and imposed additional requirements which were impossible to meet. Walker claims these laws were passed under the annual budget bill and they violate the clause in the California constitution which requires a bill contain a single subject. The annual funding bill is meant only for funding and is not supposed to be used to pass new laws, or modify existing laws – at least according to the constitution.

If Walker is correct then the extension of the dredging moratorium, and the requirement that all significant effects be fully mitigated would be thrown out. The state over the past few years has passed and modified many laws through the budget process, and Walker is the only person who has challenged them. The State has requested a delay in Walker’s case, but Walker has refused to delay further.

The CEQA Case

The second case is the WMA / PLP challenge to the environmental impact report. This lawsuit challenges the legality of conducting the EIR when a valid EIR already existed. The State claims they had additional information which wasn’t available in 1994 and this warranted a new EIR. We have challenged this as false and have presented evidence there were no new studies which added any new information to the the conduct of suction dredging.

Our case is based on two primary challenges. First, we contend the State didn’t have the legal right to conduct the EIR in the first place. The 1994 EIR was valid and the regulations were valid. The California Environmental Quality Act (CEQA) states once a EIR is completed it is final and should not be re-done except under unusual circumstances. We claim those circumstances didn’t exist and the State fabricated the justification to conduct a new EIR and issue new regulations which we contend is an illegal act.

Our second challenge is to the baseline used in the EIR. In an EIR you must pick a point in time from which to measure changes to the environment. For instance, if you are building a highway across a section of untouched desert then you would pick the current date as the point in time to measure change. If twenty cactus existed prior to the highway, then the paving over of those cactus would be a change in the environment.

If, however, like dredging, the highway already existed, and all you wanted to do is pave it over you would measure change from the existing highway. In dredging review the State assumed no dredging, and in fact no mining, had ever taken place in California. An environmental condition which is clearly false and the use of this theoretical baseline wildly exaggerated the environmental effects.

If Walker wins then the two laws which extended the dredging ban are no longer valid. If we win CEQA then the EIR which the 2012 regulations are based on are no longer valid.

So what would happen then? If we throw out the EIR, then the last valid EIR (1994) and the last valid regulations are in effect. This leaves only the ongoing Water Board study to contend with.