Metropolitan News-Enterprise


Friday, January 23, 2015


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S.C. to Decide if U.S. Law Preempts Mining Restrictions


By a MetNews Staff Writer


The California Supreme Court has agreed to decide whether a state law requiring a permit to use a suction dredge for gold mining, in combination with a law that makes it difficult or impossible to obtain such a permit, is preempted by federal law.

The justices, at their weekly conference in San Francisco Wednesday, voted unanimously to grant review of the Third District Court of Appeal decision in People v. Rinehart (2014) 230 Cal. App. 4th 419. The panel held that it lacked an adequate record to review Brandon Rinehart’s conviction for dredging without a permit, reversed the conviction, and sent the case back to Plumas Superior Court for further proceedings.

Rinehart was mining a claim that he and his father have held for years in the Plumas National Forest. After his demurrer was overruled, he was tried by Judge Ira Kaufman, without a jury, on a stipulation of facts and offer of proof.  

Defendant’s Proffer

The defendant acknowledged that he had used a suction dredge, in an area that state has closed to suction mining. He proffered, however, that he had attempted, unsuccessfully, to mine the claim by other means, and that experts would testify that suction dredging was the only effective means of extracting the gold in that area.

The defense argued that Rinehart was charged with an impossible act, failing to obtain a dredging permit when no permits were being issued, and that the state’s refusal to issue the permits prevented miners, including the defendant, from doing what the federal government had licensed them to do, mine their claims.

Kaufman rejected the arguments, placed Rinehart on probation for three years, and suspended fines pending completion of probation. He appealed, with the support of pro-mining groups the Western Mining Alliance and Public Lands for the People.

C.A. Opinion

Justice Andrea Hoch, writing for the Court of Appeal, said that because the trial judge found it unnecessary to hear evidence on the issues raised by the offer of proof, the panel could not decide whether the state laws prevent the effectuation of federal policy and are therefore preempted.

She cited South Dakota Mining Ass’n Inc. v. Lawrence County, 155 F.3d 1005 (8th Cir. 1998), which she said was “nearly directly on point here.” The court in that case held that a local ordinance barring surface metal mining in a specified area was preempted, on the basis of evidence that there was no other way to effectively mine gold and silver in that area.

The ordinance, the court said, conflicted with the purposes and objectives of Congress in passing the Mining Act of 1872, including “the encouragement of exploration for and mining of valuable minerals located on federal lands, providing federal regulation of mining to protect the physical environment while allowing the efficient and economical extraction and use of minerals, and allowing state and local regulation of mining so long as such regulation is consistent with federal mining law.”

On remand, Hoch wrote, the trial court must determine whether one of the challenged statutes “as currently applied, operate as a practical matter to prohibit the issuance of permits required by” the other statute, and “[i]f so, has this de facto ban on suction dredge mining permits rendered commercially impracticable the exercise of defendant’s mining rights granted to him by the federal government?”


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