oakview2
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Post by oakview2 on Sept 23, 2014 17:53:49 GMT -5
www.courts.ca.gov/opinions/nonpub/C074662.PDF
Good news! The California Third District Court of Appeals validates the federal preemption defense, but sends the case back for trial as to, among other things, whether the refusal to issue suction dredge mining permits renders it “commercially impracticable” to exercise mining rights.
Unfortunately, the Court also declared that the opinion should not be published, meaning, in theory, that other litigants in California are forbidden to cite it. I have always regarded this rule as an obvious violation of the First Amendment right to petition the government, and at some point, some one should invest in striking down the “no citation” rules
Please note that under Rule 8.1120 of the California Rules of Court, “any person” may request that an unpublished opinion be published. Mining and other interests throughout the West may wish to do so in compliance with that rule (see the Rule here).
Many thanks to those who have supported this litigation, and whose continuing support will be required to make a good record in the Superior Court of Plumas County going forward.
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James L. Buchal
Murphy & Buchal LLP
3425 SE Yamhill Street, Suite 100
Portland, OR 97214
Phone: 503-227-1011
Fax: 503-573-1939 |
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oakview2
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Post by oakview2 on Sept 23, 2014 17:55:29 GMT -5
First win in five year fight, decision says the state has prempted federal law, in prohibting suction minning on federal mainning claims...
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oakview2
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Post by oakview2 on Sept 23, 2014 17:56:27 GMT -5
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Post by ywevis on Sept 23, 2014 19:16:48 GMT -5
So now we gotta wait for the other one or?
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Post by Gold Seeker on Sept 23, 2014 19:27:54 GMT -5
First win in five year fight, decision says the state has prempted federal law, in prohibting suction minning on federal mainning claims... I don't agree that this court said that the state preempted Federal law, what they did do was reverse the the guilty decision by the former trial court and sent the case back to the trial court, and said the trial court must address at least two issues.... "Having no evidence in the record relevant to the operative issues bearing on defendant’s affirmative defense, we must return the matter to the trial court for further proceedings on the issue of preemption, admitting whatever evidence, and hearing whatever argument, the trial court, in its discretion, deems relevant and then ruling accordingly. Specifically, the trial court must address at least these two questions: (1) Does section 5653.1, as currently applied, operate as a practical matter to prohibit the issuance of permits required by section 5653; and (2) if 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?" So while is it a victory for Brandon in the fact that he's no longer guilty at this time, he still has to go back to the trial court for them to address the above mentioned issues, so who knows what the outcome will be at this time. |
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Post by jpgold on Sept 23, 2014 19:39:35 GMT -5
It's important I know but legal jargon makes my head hurt. Thanks for clearing it up. Basically California and the dredging ban are back at square one?
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Post by Gold Seeker on Sept 23, 2014 20:02:43 GMT -5
Reading this statement from Brandon's attorney may help us all understand that this is certainly a big victory for us gold miners and now we Will actually get a court to finally make a decision on the defacto "dredging ban" in California!! www.goldgold.com/wp-content/uploads/2014/09/memo-Rinehart-developments-9-23-14.pdfI do agree that the fact that the all 3 Judges of the appeal court unanimously agreed to returned this case back to the trial court for further proceedings is because they all agreed on Brandon's "theory" that the defacto "dredging ban" went against Federal law, but they can't make that decision, they can only decide on the what was in the record of the trail court when they found Brandon guilty, the trial court never looked at/decided if the defacto "dredging ban" went against Federal law, now they have to make a decision on that and if it prohibits miners from working their claims in a manner allowed by federal law!!! |
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Post by mark on Sept 23, 2014 20:32:47 GMT -5
Personally I think the refusal to publish the ruling is chickenshit (that term gets used around here LOL) If that was the 3 judges decision, they should stand behind it and own it damn it. And don't send it back to the lower court just overturn it.
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Post by mark on Sept 23, 2014 20:33:27 GMT -5
However, I should clarify that I am certainly happy for any victory that comes our way.
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oakview2
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Post by oakview2 on Sept 23, 2014 20:44:32 GMT -5
1. I am not and attorney nor do I prentend to be on on the web
2. Being that the moratorium is duely passed and settled law, the overturning of his conviction smacks the state squarely between the eyes calling into question in the lower court the states claim of validity
3. I will take our chances in Plumas county anytime, with a already established friendly court that suggested that the case be pled to without predijuice and suggested a appeal was in order.Is this the magic bullet no, is it a win, HELL YES, first in five years of delay, delay, delay. Bite me Fish and Shame, Center for Biodiversity, Karuks and all those courrpt Ca Legislators who perpretrated this fraud....
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oakview2
Junior Member
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Posts: 52
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Post by oakview2 on Sept 24, 2014 7:55:16 GMT -5
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Post by Gold Seeker on Oct 8, 2014 18:15:23 GMT -5
UPDATE!!! The fact that the Third Appellate Court's opinion wasn't going to be published means that the opinion couldn't be used/cited in pertinent cases in California state courts due to California state laws even though the opinion can be use in a federal court, all other cases concerning dredging in California are in state courts, but a drive was started to petition the Third Appellate Court to publish the opinion, by which many people had to send in 8 letters, one to the court and one to all others concerning Brandon Rinehart's appeal, all of these letters had to be done correctly and precisely according to law to be counted in the request to publish the opinion, many of the people involved and or just regular prospectors posted instructions, a form letter with an area to add your personal interest in this case, and the addresses to mail the letters on many gold forums and we did it!!! The request for publication of the Third Appellate Court's opinion on Brandon Rinehart's appeal has been granted!!!  www.icmj.com/news-detail.php?id=264&keywords=Suction_gold_dredging_in_California_update%3A_Court_of_Appeals_orders_People_v._Rinehart_opinion_to_be_published appellatecases.courtinfo.ca.gov/search/case/dockets.cfm?dist=3&doc_id=2055824&doc_no=C074662 Great job on sending the letters everyone, over 300 letters sent in, with approximately 250 filled out correctly, enough to get the job done!!! Also thanks to all who posted instructions and pertinent info for sending the request letters, without that effort no one would have known or been able to send the request letters!!! |
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Post by ridgeline on Oct 8, 2014 19:07:18 GMT -5
Shouldnt this be in cali section
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Post by Gold Seeker on Oct 9, 2014 5:31:59 GMT -5
Ridgeline,
This is the General section and it says that "You can talk about anything here", that being said what is happening out in California is important to all prospectors, what happens on the west coast moves to the east coast rather fast, what is happening in Tennessee is one example, and what happens out there in these trials will affect our area at some time in the future, so it not just a California issue, IMHO!
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Post by ridgeline on Oct 10, 2014 4:49:50 GMT -5
Gold seeker its groups like this that draw attention and ruin spots like 7 dredges in creek at one time u and i know this is true and for this group.
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