By Brandon Johnson

In one of the most heavily anticipated rulings affecting suction dredge mining in California, the California Supreme Court has issued their twenty seven page ruling complete with a historical overview of mining history, a summary of the arguments on both sides, endless citation of case law which shaped their view of the case, and a decision we are all looking to understand. Does the California Supreme Court, evident in its ruling, believe suction dredging is harmful to the environment? The court may have ruled against Brandon, but his case may still be unheard.

Here we will attempt to summarize the thought process outlined in this twenty seven page ruling, which seems to be unanimous. We will refer to the ruling wherever possible so one can draw their own conclusions about the implications or interpretation offered by the highest court of the state. I think it is important to be clear, that the opinions expressed in this article are present in the decision itself and are not necessarily reflect the views of the Gold Prospectors Association of America, the Lost Dutchman Mining Association, or the mining community in general.

History

Brandon Lance Rinehart was convicted of engaging in a “banned mining technique” and asserted that federal law promoting mining preempts the state’s contrary legislation. He contends that the legislative moratorium (effectively banning suction dredging in California) prevents him from using the only “commercially practicable” method of extracting gold from his mining claim, and that “Congress’s purposes and objectives” behind passage of the general mining act of May 10, 1872 (Mining Law of 1872) and title 30 United States Code section 612, enacted as part of the Surface Resources and Multiple Use Act of 1955 prevent the state from prohibiting dredging.

At trial a demurrer (objection) submitted by Rinehart to this effect was overruled and, having rejected the preemption defense, the court excluded testimony Rinehart would have presented in support of that defense. The trial court convicted him on both counts and sentenced him to three years’ probation.

On appeal, the Court of Appeals reversed the trial court’s decision finding that “federal mining law should be interpreted as preempting any state law that unduly hampers mining on federal land” and went on to say “Rinehart had made a colorable argument that (1) the state regulatory scheme amounted to a de facto [in fact, or in effect] ban on suction dredging and (2) this ban rendered mining on his claim “‘commercially impracticable.’“ The matter was remanded for further proceedings before the decision was appealed to the California Supreme Court (COURT) by the state.

The Ban on Dredging

The California Department of Fish and Game, now known as the Department of Fish and Wildlife, (DEPARTMENT) contends they have regulated suction dredging for the past 50 years under authority (they apparently gave themselves) outlined in Fish and Game Code section 5653. “Responding to concerns that suction dredging disturbed endangered coho salmon habitats and contributed to mercury contamination of both fish and humans, in 2009 the Legislature imposed a temporary moratorium on the issuance of dredging permits pending further environmental review by the Department.” (PAGE 2 PARAGRAPH 4)

The COURT goes on to cite that the moratorium went into immediate effect based on California legislative findings that “suction or vacuum dredge mining results in various adverse environmental impacts to protected fish species, the water quality of this state, and the health of the people of this state.” (PAGE 3 PARAGRAPH 3)

In 2011, the Legislature placed an expiration date on the moratorium of June 30, 2016 in the event environmental review and new regulations were not completed. The Department finished its environmental review “but concluded it lacked regulatory authority to address fully the environmental impacts of suction dredging.” (PAGE 3 PARAGRAPH 1) The expiration date was removed and the ban on suction dredging remains in place.

The Decision – Part 1

The Court explains that “a state ‘is free to enforce its criminal and civil laws’ on federal land, unless those laws conflict with federal legislation or regulation; in the event of a conflict, of course, ‘state laws must recede.’” (PAGE 5 PARAGRAPH 2) It is also said that “the State of California’s role in protecting the waters and the fish and wildlife within its borders is long-standing, predating even the federal laws upon which Rinehart relies” citing English common law supported by case law that “…California became trustee of the state’s waters, with responsibility for their oversight, from the beginning of statehood.” (PAGE 7 PARAGRAPH 2)

Among other arguments and citations of legal precedent, the Court goes on to say that “following the United States Supreme Court’s lead, we traditionally have applied a strong presumption against preemption in areas where the state has a firmly established regulatory role”, and that while Rinehart “contends no presumption should arise here because state law is being used to regulate conduct on federal land, where congressional power is plenary [unqualified or absolute]…Rinehart has not carried his burden of establishing congressional purposes and objectives that require California’s environmental regulations be displaced.” (PAGE 8 PARAGRAPH 1)

So what does this mean in English? The Court is saying that the 1872 Mining Law, along with title 30 United States Code section 612 offer protection of the real property interest a miner possesses when he/she files a mining claim. They are intended to protect that interest, through federal law, from the fear that the federal government, the state or local government will sell your claim out from under you after you have worked to develop mining activity on your claim. They may also protect the miner’s interest if you can prove that those state laws undermine the “congressional purposes and objectives” implied by the 1872 Mining Law, along with other relevant federal mining legislation, but the burden of proof is on you.

They do not prohibit the state from passing and enforcing laws to protect its resources or people from environmental or other impacts that may result from certain methods of mining. Recall the presumption on the part of the state that “suction or vacuum dredge mining results in various adverse environmental impacts to protected fish species, the water quality of this state, and the health of the people of this state.” Because the state has a “role in protecting the waters and the fish and wildlife within its borders”, and the legislature has deemed suction dredging to be harmful to fish habitat and the health of the people, Rinehart has not demonstrated that California’s environmental regulations need to be displaced. This leads us to the next part of the Courts decision.

The Decision – Part 2

The Court interprets the Mining Law of 1872 as “allowing citizens to enter federal land freely and explore for valuable minerals. Locators of valuable minerals may obtain a right to possess and develop the area around their claim, with title remaining with the United States.” They go on to say “the provisions of the 1872 law identify in detail the conditions for obtaining, and extent of, a right of occupancy, the conditions for obtaining complete title, the size of claims, the marking and recordation of claims, how disputes between claimants are to be resolved, and so on.” But they later insist that “the act as a whole is devoted entirely to the allocation of real property interests among those who would exploit the mineral wealth of the nation’s lands, not regulation of the process of exploitation – the mining – itself.” (PAGE 9 PARAGRAPHS 2 & 3)

So while claimants are granted the right of possession, the Court cites the law highlighting “so long as they comply with the laws of the United States, and with State, territorial, and local regulations.” There is one exception. “Compliance with laws that are ‘in conflict with the laws of the United States governing [claimants’] possessory title’ is not required.” (PAGE 10 PARAGRAPH 1) This means that state laws that would impact someone’s property right would conflict with their federal rights under the mining law, and would be afforded federal protection. And because the Congress that enacted the 1872 Mining Law identified exceptions to the requirement of complying with State law relating to real property, it is implied that their “purposes and objectives” were not to supersede the State’s police power to protect against environmental impacts, otherwise it would have been likewise included.

Title 30 United States Code section 21a, which would later become a preface to the Mining Law of 1872, is also cited by the Court as the “’continuing policy of the Federal Government’[s] promotion of (1) a private, ‘economically sound and stable domestic mining…industr[y], (2) the orderly and economic development of domestic mineral resources… to help assure satisfaction of industrial, security and environmental needs, (3) mining…research, including the use and recycling of scrap…, and (4) the study and development of methods… to lessen any adverse impact of mineral extraction and processing upon the physical environment that may result from mining or mineral activities.’” This is viewed as “further acknowledging mining must be done in an ‘orderly’ fashion and account for ‘environmental needs’ and ‘any adverse impact’ on ‘the physical environment.’” (PAGE 11 PARAGRAPH 1)

Finally the court points out that Rinehart “asserts the 1872 law reflects a more expansive congressional purpose, an affirmative intent to grant individuals a federal right to mine, and requires preemption of state laws whenever they unduly infringe the right.” Title 30 United States Code section 22 provides: “Except as otherwise provided, all valuable mineral deposits in lands belonging to the United States, both surveyed and unsurveyed, shall be free and open to exploration and purchase, and the lands in which they are found to occupation and purchase…” (PAGE 11 PARAGRAPH 2)

To consider his position the Court focuses on the legislative history of mining citing the 1866 mining law, of which much language would be incorporated into the 1872 mining law. “The 1866 act was drafted as protection for miners against the threatened exercise by Congress of its latent property clause power to sell land” going on to say “by legislating, Congress endorsed the status quo and ‘prevent[ed] such rights from being lost on a sale of lands.’… The mining laws gave prospectors tools to secure their real property interests against federal action.”

The Court summarizes their interpretation of the 1866 act, the 1872 Mining Law and various sections of Title 30 United States Code by saying prospectors “granted a right to enter federal land, the opportunity to obtain a right of possession, and the opportunity to acquire ownership, miners could pursue mineral discovery and exploitation free from the specter of having land they worked sold at auction” but “an intent to confer a right to mine, immune in whole or in part from curtailment by regulation…is not apparent. The mining laws were neither a guarantee that mining would prove feasible nor a grant of immunity against local regulation…” (PAGE 15 PARAGRAPH 1)

Now What

Near the close of the decision, the court gives us miners a little light at the end of their tunnel. It comes in the form of a comparison between current legislative opinion of the “harms” of suction dredging and hydraulic mining in the Sierra Nevada foothills (California’s Sacramento Valley) in the early 1850’s.

They do cite that “while effective, this method also had substantial environmental impacts. Its waste products – gravel, silt, and other earthen debris – washed downstream, filled up riverbeds, and triggered devastating floods in lowland farming communities.” (PAGE 16 PARAGRAPH 2) Eventually “Central Valley communities sued hydraulic mining companies under state nuisance law and obtained permanent injunctions prohibiting the discharge of debris into various waterways, which had practical effect of banning the mining practice.” Here the mining industry also cited protection under the 1872 mining law arguing “federal legislation ‘recognize[ed] mining as a proper and lawful employment, and encourage[ed] this industry’ with full knowledge of the environmental consequences it might impose, and thus they could not be enjoined” but were ultimately unsuccessful. (PAGE 17 PARAGRAPH 1)

Light comes at the bottom of the next 2 pages in the footnotes. The Court notes that “Rinehart distinguishes the Woodruff injunction (case regarding hydraulic mining) on the ground it involved impacts felt elsewhere than on federal land, but this is a distinction without a difference.” In the footnote at the bottom of the page reads “Indeed, it is not even a distinction. The impacts the Legislature perceived as warranting a temporary moratorium here – on fish, water quality, and the health of the state’s inhabitants – are likewise experienced elsewhere than just the federal land on which Rinehart seeks to mine.” (PAGE 19 PARAGRAPH 2 AND FOOTNOTE 8)

The Court further states that “the federal statutory scheme does not prevent states from restricting the use of particular mining techniques based on their assessment of the collateral consequences for other resources” but again (and more importantly) in the footnote says “Rinehart takes issue with the Legislature’s assessment of those collateral consequences, dismissing the impacts of suction dredging as minimal. In this proceeding, we are without authority to countermand the Legislature’s judgment. The only issue for us is whether federal law permits the Legislature to favor other interests it deems in need of protection at the expense of mining.” (PAGE 20 PARAGRAPH 3 AND FOOTNOTE 9)

In Summary

The decision issued by the California Supreme Court is twenty seven pages outlining a historical overview of mining history, a summary of the arguments on both sides of the issue presented to the court, endless citation of case law which shaped their view of the case, and a decision that the 1872 mining law, as well as subsequent federal legislation pertaining to mining, did not immunize miners from federal, territorial, state or local regulation to protect the environment.

The question that needs to be answered is: Does suction or vacuum dredge mining results in various adverse environmental impacts to protected fish species, the water quality of this state, and the health of the people of this state? Buried within the twenty seven page ruling, the court recognizes that it was “without authority to countermand the Legislature’s judgment,” and without doing so ruled unanimously against Rinehart and the mining community.

I encourage everyone to take the time to read through the full decision in its entirety to formulate your own opinion of the reasons behind their findings. Stay tuned to goldprospectors.org, and to our Social Media Pages for additional updates as we explore the legislature’s justification for concluding suction dredge mining is so harmful to the environment and to our communities. Don’t forget to comment on our forum, on this article and email us with your thoughts or opinions. I would also like to thank Brandon Rinehart for his efforts to defend the rights of miners. Support of his efforts are ongoing.

Official Court Ruling Document (As referred to above)

Fish and Game Code (As referred to above)

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Brandon Johnson is the President of the Gold Prospectors Association of America & Lost Dutchman's Mining Association and can be reached at info@goldprospectors.org.