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Here is the Latest on the Dredging Ruling... Please read it all I CIV 150112 JCP DS4720 MISC 154102 Scanned Document Coversheet... System Code CIV Case Number DS4720 CaseType JCP THIS COVERSHEET IS FOR COURT Action Code MISC PURPOSES ONLY AND THIS IS NOT Action Date 01 12 15 A PART OF THE OFFICIAL RECORD ActionTime 3 41 YOU WILL NOT BE CHARGED FOR Action Seq 0002 THI S PAGE Printed by KPOLA Ruling on Motions for Summary Adjudication on Issue of Federal Preemption filed NEWFILE SUCTION DREDGE MSA RULING Included Actions Kimble et al v Harris et al Case No CIVDS1012922 San Bernardino County filed September 15 2010 Kimble Karuk Tribe et al v Calif Dept of Fish Game et al Case No RG12623796 Alameda County filed April 2 2012 Karuk 11 Public Lands for the People et al v State of California et al Case No CIVDS1203849 San Bernardino County filed April 12 2012 PLP The New 49 ers Inc et al v Calif Dept of Fish Game et al Case No SCCVCV1200482 Siskiyou County filed April 13 2012 New 49ers Walker v Kama a Harris et al Case No 34 2013 80001439 Sacramento County filed March 14 2013 Walke and Foley v California Dept of Fish and Wildlife et al Case No SCCVCV13 00804 Siskiyou County filed July 1 2013 Fole Motions Motions for Summary Adjudication on Issue of Federal Preemption 1 Plaintiff Kimble et al motion for summary adjudication on its 1st Cause of Action 2 Plaintiff PLP et al motion for summary adjudication on its 4th Cause of Action 3 Plaintiff New 49 ers et al motion for summary adjudication on its 2 a Cause of Action 4 Defendant CDFW motion for summary adjudication re Kimble Second Amended Complaint SAC 1St Cause of Action 5 Defendant CDFW motion for summary adjudication re PLP First Amended Complaint FAC 4thCause of Action 6 Defendant CDFW motion for summary adjudication re New 49 ers FAC 2 d Cause of Action 1 Page Request for Judicial Notice a in each of the three of CDFWs motions for summary adjudication CDFW requests judicial notice under Evid Code 452 c official legislative acts of the following Exhibits A B C and E various statutes or bills before Congress Exhibits D F G H J and M excerpts from the Congressional Globe or Congressional Record and Exhibits K and L congressional committee reports or excerpts from such reports CDFWargues that all of these documents are relevant to the sole issue presented in this motion preemption because the critical question in every preemption analysis is congressional intent Louisiana Public Service Com v F C C 1986 476 U S 355 369 The Court Grants judicial notice of CDFW s Ex A M b In opposition to CDFWs motion New 49 ers request judicial notice under Evid Code 452 c official executive acts of Exhibit 1 a Federal Register Notice issued by the Forest Service on June 6 2005 Clarification as to When a Notice of Intent to Operate and or Plan of Operation is Needed for Locatable Mineral Operations on National Forest System Lands 70 Fed Reg 32 713 June 6 2005 Exhibit 2 a high level administrative appeal from an adverse decision by the Tahoe National Forest Supervisor to the Deputy Regional Forester and Exhibit 3 an excerpt of a Forest Service Schedule of Proposed Action SOPA in the Plumas National Forest In opposition to CDFW s motions Kimble and PLP also request judicial notice under Evid Code 452 c of New 49 ers Ex 1 and Ex 3 The Court Grants judicial notice of Plaintiffs Kimble PLP and New 49 ers Ex 1 3 2 Page c In each of the Kimble and PLP motions for summary adjudication Kimble and PLP request judicial notice under Evid Code 452 c official executive acts of Exhibit A an E mait from Mark Stopher Environmental Project Manager CDFW Subject Suction dredge status July 26 2011 sent July 26 2011 3 49 PM Exhibit B April 1 2013 CDFW Report to the Legislature Regarding Instream Suction Dredge Mining Under The Fish and Game Code April 1 2013 Report to Legislature and Exhibit C Cal Code Regs tit 14 228 and 228 5 Suction Dredging The Court Grants judicial notice of Kimble and PLP Ex A C d For the first time in reply Kimble and PLP make a second request for judicial notice under Evid Code 452 c official executive acts of Exhibit 1 United States Department of the Interior Bureau of Land Management Colorado Minerals Mining Frequently Asked Questions Exhibit 2 United States Department of the Interior Office of the Solicitor Memorandum Dated November 14 2005 To Secretary Director Bureau of Land Management From Solicitor Subject Legal Requirements for Determining Mining Claim Validity Before Approving a Mining Plan of Operations Concurrence by Secretary of Interior Gale S Norton November 17 2005 and Exhibit 3 State of California Office of Administrative Law Notice of Approval of Regulatory Action dated April 27 2012 Consideration of evidence offered for the first time in reply or evidence not referenced in the moving party s separate statement rests with the sound discretion of the trial court as explained by the court in San Diego Watercrafts v Wells Fargo Bank 2002 102 Cal App 4th 308 315 316 Here the 2 d RJN of Kimble and PLP is not evidence in support of any particular undisputed fact but rather part of Plaintiffs legal 3 Page argument that federal mining claims are presumed valid e that the Mining Law does not require determination of claim validity before allowing exploration or mineral development The Court Grants judicial notice of Kimble and PLP Ex 1 3 e The New 49 ers motion for summary adjudication does not include any request for judicial notice f In opposition to the Kimble PLP and New 49 er motions for summary adjudication the Karuk Tribe and Coalition request judicial notice under Evid Code 452 c official executive and legislative acts of Ex A Legislative Counsel s Digest California 2009 Legislative Service 2009 Portion of 2009 2010 Regular Session 2009 Cal Legis Srv Ch 62 1 2 S B 670 West dated August 6 2009 enactment of Fish and Game 5653 1 Ex B Legislative Counsel s Digest California 201 Legislative Service 2011 Portion of 2011 2012 Regular Session 2011 Cal Legis Serv Ch 133 6 A B 120 West dated July 26 2011 2011 amendment of Fish and Game 5653 1 Ex C Bill Analysis AB 120 Budget Committee dated June 8 2011 2011 amendment of Fish and Game 5653 1 Ex E Chapter 4 2 Water Quality and Toxicology Draft Subsequent Environmental Impact Report from the California Department of Fish and Wildlife previously named Department of Fish and Game dated February 2011 Ex F California Department of Fish and Wildlife Report to the Legislature Regarding Instream Suction Dredge Mining Under the Fish and Game Code Department of Fish and Wildlife Charlton Bonham Director April 1 2013 Ex G Mercury Contamination from Historic Gold Mining in California Fact Sheet FS 061 00 United States Geological Survey Department of the Interior Charles N Alpers and Michael P Hunerlach dated May 2000 Ex H Chapter 43 Biological Resources 4 Page Draft Subsequent Environmental Impact Report from the California Department of Fish and Wildlife previously named Department of Fish and Game dated February 2011 Ex Suction Dredge Permitting Program Final Subsequent Environmental Impact Report California Department of Fish and Game March 2012 and Ex J Findings of Fact of he California Department of Fish and Game Suction Dredge Permitting Program Final SEIR pursuant to CEQA dated March 16 2012 The Court Grants judicial notice of Karuk Tribe Ex A C and E J Suction Dredge Mining in California In general CDFW regulates suction dredging and the use of any related equipment in California pursuant to F G Code 5653 specifically Under that authority since 1995 the use of any vacuum or suction dredge equipment by any person in any river stream or lake in California is prohibited unless authorized under a permit issued by CDFW F G Code 5653 a F G Code 5653 states in its entirety a The use of any vacuum or suction dredge equipment by any person in any river stream or lake of this state is prohibited except as authorized under a permit issued to that person by the department in compliance with the regulations adopted pursuant to Section 5653 9 Before any person uses any vacuum or suction dredge equipment in any river stream or lake of this state that person shall submit an application for a permit for a vacuum or suction dredge to the department specifying the type and size of equipment to be used and other information as the department may require b Under the regulations adopted pursuant to Section 5653 9 the department shall designate waters or areas wherein vacuum or suction dredges may be used pursuant to a permit waters or areas closed to those dredges the maximum size of those dredges that may be used and the time of year when those dredges may be used If the department determines pursuant to the regulations adopted pursuant to Section 5653 9 that the operation will not be deleterious to fish it shall issue a permit to the applicant If any person operates any equipment other than that authorized by the permit or conducts the operation in any waters or S Page area or at any time that is not authorized by the permit or if any person conducts the operation without securing the permit that person is guilty of a misdemeanor c The department shall issue a permit upon the payment in the case of a resident of a base fee of twenty five dollars 25 as adjusted under Section 713 when an onsite investigation of the project size is not deemed necessary by the department and a base fee of one hundred thirty dollars 130 as adjusted under Section 713 when the department deems that an onsite investigation is necessary In the case of a nonresident the base fee shall be one hundred dollars 100 as adjusted under Section 713 when an onsite investigation is not deemed necessary and a base fee of two hundred twenty dollars 220 as adjusted under Section 713 when an onsite investigation is deemed necessary d It is unlawful to possess a vacuum or suction dredge in areas or in or within 100 yards of waters that are closed to the use of vacuum or suction dredges Added Stats 1986 ch 1368 23 Amended Stats 1988 ch 1037 1 Stats 1994 ch 775 1 AB 1688 Stats 2006 ch 538 185 SB 1852 effective January 1 2007 Pursuant to SB 670 effective 8 6 09 AB 120 effective 7 26 11 and SB 1018 effective 6 27 12 F G Code 5653 1 a conditional proscription against vacuum and suction dredging activities was enacted Suction dredge mining entails the use of a vacuum or suction system to remove and return material at the bottom of a river stream or lake for the extraction of minerals primarily gold People v Osborn 2004 116 Cal App 4th 764 768 14 Cal Code Regs CCR 228 a In suction dredge mining the gravel within the active stream channel is suctioned from the bottom of the stream and processed over a sluice on a floating platform A gasoline powered motor and pump are mounted on the floating platform for powering the suction apparatus and for driving the air pump which supplies air to the persons working underwater The size of dredges used in California ranges from 2 inches to up to 10 inches or more Karuk Tribe of Cal v U S Forest Service 6 Page N D Cal 2005 379 F Supp 2d 1071 1080 fn 5 citations quotation marks and brackets omitted rev d on other grounds 9th Cir 2012 681 F 3d 1006 As set forth above under F G Code 5653 1 suction dredge mining throughout the State is prohibited until the Director of the CDFW certifies that 1 the Department has completed environmental review of its suction dredge regulations pursuant to the California Environmental Quality Act CEQA 2 CDFWpromu gates new regulations as necessary based on that environmental review 3 the new regulations are operative 4 the new regulations fully mitigate all identified significant environmental effects and 5 a fee structure is in place that will fully cover all costs to the Department related to administration of its suction dredge permit program F G Code 5653 1 b The Legislature found this moratorium necessary because 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 Stats 2009 ch 62 2 On March 16 2012 the CDFW completed the required environmental review and adopted updated regulations effective April 27 2013 But it has not certified completion of all five items required by 5653 1 b and the moratorium remains in effect On April 1 2013 CDFW pursuant to F and G Code 5653 1 c submitted its required report to the Legislature on statutory changes or authorizations that in the determination of the department are necessary to develop the suction dredge regulations required by paragraph 2 of subdivision b including but not limited to recommendations relating to the mitigation of all identified significant environmental impacts and a fee structure that will fully cover all program costs 7 Page Federal Preemption in General Federal law can preempt state law in four ways express field conflict and obstacle See generally Viva Intern Voice for Animals v Adidas Promotional Retail Ops Inc 2007 41 Cal 4th 929 935 936 California Federal Sav Loan Assn v Guerra 1987 479 U S 272 280 281 1 Congress can pre empt state law by so stating in express terms Guerra supra 479 U S at p 280 2 In so called field preemption congressional intent to pre empt state law in a particular area may be inferred where the scheme of federal regulation is sufficiently comprehensive to make reasonable the inference that Congress left no room for supplementary state regulation Id at pp 280 281 citation and quotation omitted Finally federal law may conflict with state law either 3 because compliance with both federal and state regulations is a physical impossibility id at p 281 or 4 if it stands as an obstacle to the accomplishment and execution of the full purposes and objectives of Congress Ibid Courts are reluctant to infer preemption and it is the burden of the party claiming that Congress intended to preempt state law to prove it Viva supra 41 Cal 4th at p 936 The Supreme Court has set forth several rules regarding preemption First in all pre emption cases and particularly in those in which Congress has legislated in a field which the States have traditionally occupied courts must start with the assumption that the historic police powers of the States were not to be superseded by the Federal Act unless that was the clear and manifest purpose of Congress Wyeth v Levine 2009 555 U S 555 565 see also Bronco Wine Co v Jolly 2004 33 Cal 4th 8 Page 943 957 Second if two readings of a statute are plausible courts have a duty to accept the reading that disfavors pre emption Bates v Dow Agrosciences LLC 2005 544 U S 431 449 Finally a general federal purpose to encourage a particular activity does not on its own preempt state laws that do the opposite See Commonwealth Edison Co v Montana 1981 453 U S 609 633 34 Instead it is necessary to look beyond general expressions of national policy to specific federal statutes with which the state law is claimed to conflict Id at p 634 People v Rinehart Subsequent to argument in the instant case the case of People v Rinehart 2014 230 Cal App 4th 419 was decided Defendant Brandon Rinehart was charged with a violation of F G C 5653 a in that he used vacuum and suction dredge equipment in a river stream or lake without a permit and with a violation of F G C 5653 d in that he possessed a vacuum and suction dredge within an area closed to the use of that equipment and within 100 yards of waters closed to the use of that equipment The trial court rejected defendant s affirmative defense that 5653 was unenforceable against him because the statute as applied was preempted by federal law and it disallowed evidence relevant to the issue The trial court then found defendant guilty of both offenses The Third Appellate District Court of Appeal reversed the judgment and remanded the cause The court noted that F G C 5653 requiring a permit from the state before persons may conduct suction dredge mining operations does not standing alone contravene federal law However the court could not determine on the record before it that as a matter of law the criminal provisions of 5653 read in 9 Page light of the provisions of F G C 5653 1 are rendered unenforceable because the California statutes have rendered the exercise of rights granted by the federal mining laws commercially impracticable given that the trial court had disallowed evidence relevant to the issue The matter thus had to be returned 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 deemed relevant and then ruling accordingly Specifically the trial court had to address at least whether 5653 1 as currently applied operated as a practical matter to prohibit the issuance of permits required by 5653 and if so whether that de facto ban on suction dredge mining permits had rendered commercially impracticable the exercise of defendant s mining rights granted to him by the federal government The Rinehart court addressed the fundamental principles of federal preemption as follows The property clause of the United States Constitution provides that Congress shall have Power to dispose of and make all needful Rules and Regulations respecting the Territory or other Property belonging to the United States U S Const Art IV 3 cl 2 Kleppe v New Mexico 1976 426 U S 529 535 The United States Supreme Court has repeatedty observed that theJ power over the public land thus entrusted to Congress is without limitations Id at p 539 quoting U S v San Francisco 1940 310 U S 16 29 Even so the State is free to enforce its criminal and civil laws on federal land so long as those laws do not conflict with federal law Citation The Property Clause itself does not automatically conflict with all state regulation of federal land Rather a bsent consent or cession a State undoubtedly retains jurisdiction over federal lands within its territory but Congress equally surely retains the power to enact legislation respecting those lands pursuant to the Property Clause And when Congress so acts the federal legislation necessarily overrides conflicting state laws under the Supremacy Clause Citation Granite Rock supra 480 U S at pp 580 581 italics added quoting Kleppe v New Mexico supra 426 U S at p 543 Put differently T he Property Clause gives Congress plenary 10 Page power over federal land however even within the sphere of the Property Clause state law is pre empted only when it conflicts with the operation or objectives of federal law citation Granite Rock at p 593 S tate law can be pre empted in either of two general ways If Congress evidences an intent to occupy a given field any state law falling within that field is pre empted Citations If Congress has not entirely displaced state regulation over the matter in question state law is still pre empted to the extent it actually conflicts with federal law that is when it is impossible to comply with both state and federal law citation or where the state law stands as an obstacle to the accomplishment of the full purposes and objectives of Congress citation Silkwood v Kerr McGee Corp 1984 464 U S 238 248 see Viva supra 41 Cal 4th at pp 935 936 Rinehart supra 230 Cal App 4th at pp 430 431 The Rinehart court went on to describe the applicable federal mining law as follows The federal government s policy relating to mining and minerals is set forth at title 30 United States Code section 22 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 by citizens of the United States under regulations prescribed by law and according to the local customs or rules of miners in the several mining districts so far as the same are applicable and not inconsistent with the laws of the United States We deal here mainly with the General Mining Act of 1872 Under the Mining Act of 1872 17 Stat 91 as amended 30 U S C 22 et seq a private citizen may enter federal lands to explore for mineral deposits If a person locates a valuable mineral deposit on federal land and perFects the claim by properly staking it and complying with other statutory requirements the claimant shall have the exclusive right of possession and enjoyment of all the surface included within the lines of their locations citation although the United States retains title to the land The holder of a perfected mining claim may secure a patent to the land by complying with the requirements of the Mining Act and regulations promulgated thereunder citation and upon issuance of the patent legal title to the land passes to the patent holder Granite Rock supra 480 U S at pp 575 576 The United States Supreme Court has recognized that the intent of Congress in passing the mining laws was to reward and encourage the 11 Page discovery of minerals that are valuable in an economic sense United States v Coleman 1968 390 U S 599 602 Constitutionally speaking under most circumstances the states are free to enact environmental statutes and regulations binding on those holding unpatented mining claims on federal lands so long as those statutes and regulations do not rise to the level of impermissible state land use regulations See Granite Rock supra 480 U S 572 The line between environmental regulation and land use planning will not always be bright for example one may hypothesize a state environmental regulation so severe that a particular land use would become commercially impracticable However the core activity described by each phrase is undoubtedly different Land use planning in essence chooses particular uses for the land environmental regulation at its core does not mandate particular uses of the land but requires only that however the land is used damage to the environment is kept within prescribed limits Id at p 587 Rinehart supra 230 Cal App 4th at pp 431 432 The Rinehart court then noted that n 1961 the State of California enacted section 5653 directing California s Department of Fish and Wildlife formerly known as the Department of Fish and Game Department to issue permits if it determined the particular vacuum or suction dredge mining operation will not be deleterious to fish Stats 1961 ch 1816 1 p 3864 Suction dredging is the use of a suction system to remove and return materials from the bottom of a stream river or lake for the extraction of minerals Cal Code Regs tit 14 228 In 1988 amendments to the statute made it a misdemeanor to possess a vacuum or suction dredge in or within 100 yards of waters closed to the activity Stats 1988 ch 1037 1 p 3371 Rinehart supra 230 Cal App 4th at p 432 Ultimately the legislature prohibited issuing any new permits under section 5653 and imposed a statewide moratorium on instream suction dredge mining The current F G C 5653 1 allows for the statutory moratorium to end upon the Department s certification that the following five conditions had been satisfied 12 Page 1 The D epartment has completed the environmental review of its existing 1994 suction dredge mining regulations 2 The D epartment has transmitted for filing with the Secretary of State a certified copy of new regulations adopted as necessary pursuant to the Government Code 3 The new regulations described in paragraph 2 are operative 4 The new regulations described in paragraph 2 fully mitigate all identified significant environmental impacts 5 A fee structure is in place that will fully cover all costs to the D epartment related to the administration of the program Former 5653 1 subd b see 5653 1 as amended by Stats 2012 ch 39 7 eff June 27 2012 Rinehart supra 230 Cal App 4th at pp 432 433 In Rinehart Defendant argued that because of a lack of funding the Department is unable for financial reasons to fulfill the conditions set forth in section 5653 1 which results in a continuing if not permanent moratorium on suction dredge mining permits which stands as an obstacle to congressional intent In response to the argument that such permits may be issued again at some point in the future Defendant responded that to accept that argument would be to allow any moratorium to stand on the promise that it would be lifted in the future Defendant also argued that where the government has authorized a specific use of federal lands a state may not prohibit that use either temporarily or permanently in an attempt to substitute its judgment for that of Congress Rinehart supra 230 Cal App 4th at p 433 The Rinehart court thus framed its analysis as whether sections 5653 and 5653 1 as presently applied stand as obstacles to the accomplishment of the full purposes and objectives of Congress in passing the federal mining laws Rinehart supra The court acknowledged that section 5653 requiring a permit from the state 13 Page before persons may conduct suction dredge mining operations does not standing alone contravene federal law citing Granite Rock supra 480 U S 572 which established that the requirement of a state permit to conduct certain activities on federal land is not categorically prohibited Rinehart supra Addressing the conditions attending the permit the court stated The question here is whether the requirements of section 5653 1 which requirements defendant argues cannot at the present time be met by the state in fact operate to prohibit the issuance of a permit under section 5653 That is according to defendant there is at the current time a de facto ban on suction dredge mining in California imposed by the state through the operation of sections 5653 and 5653 1 Moreover according to defendant there is no economically feasible way to extract valuable mineral deposits at the site of his claim Put simply according to defendant this combination of circumstances has the practical effect of the state taking away from him what the federal government has granted Therefore he argues the state statutes are unenforceable because their operation as to defendant is preempted by federal law Rinehart supra 230 Cal App 4th at p 434 The Rinehart court specifically found the opinion of the United States Court of Appeals for the Eighth Circuit in South Dakota Mining Assn Inc v Lawrence County 8th Cir 1998 155 F 3d 1005 South Dakota Mining nearly directly on point In South Dakota Mining the voters of Lawrence County South Dakota enacted an ordinance prohibiting the issuance of new or amended permits for surface metal mining in what was known as the Spearfish Canyon area Plaintiffs in the action to permanently enjoin enforcement of the ordinance included mining companies that held federally patented and unpatented mining claims in the area and that had conducted surface mining operations consistent with federal law within Lawrence County for the 15 years before the ordinance was enacted South Dakota Mining supra 155 F 3d at p 1007 The record in the district court showed that surface metal mining was the only mining method that had been used to mine gold and silver deposits in the area for the previous 20 years The record also showed that surface metal mining was the only mining method that could extract gold and silver within the Spearfish Canyon area even though in other parts of South Dakota underground and other types of gold and silver mining were 14 Page prevalent Surface metal mining in the Spearfish Canyon area was the only mining method available as a practical matter because the gold and silver deposits in that area were located geologically at the earth s surface The record showed that the mining companies had invested substantial time and money to explore the area for mineral deposits and to develop mining plans that conformed to federal state and local permitting laws South Dakota Mining supra 155 F 3d at pp 1007 1008 The district court permanently enjoined enforcement of the ordinance holding that the General Mining Act of 1872 preempted the ordinance South Dakota Mining supra 155 F 3d at p 1008 The Eighth Circuit Court of Appeals affirmed the district court s order The court first found that the purposes and objectives of Congress in passing the General Mining Act of 1872 included 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 South Dakota Mining supra 155 F 3d at p 1010 The court then found that t he Lawrence County ordinance is a per se ban on all new or amended permits for surFace metal mining within the area Because the record shows that surFace metal mining is the only practical way any of the plaintiffs can actually mine the valuable mineral deposits located on federal land in the area the ordinance s effect is a de facto ban on mining in the area The ordinance s de facto ban on mining on federal land acts as a clear obstacle to the accomplishment of the Congressional purposes and objectives embodied in the Mining Act Congress has encouraged exploration and mining of valuable mineral deposits located on federal land and has granted certain rights to those who discover such minerals Federal law also encourages the economical extraction and use of these minerals The Lawrence County ordinance completely frustrates the accomplishment of these federally encouraged activities A local government cannot prohibit a lawful use of the sovereign s land that the superior sovereign itself permits and encourages To do so offends both the Property Clause and the Supremacy Clause of the federal Constitution The ordinance is prohibitory not regulatory in its fundamental character South Dakota Mining supra 155 F 3d at p 1011 Rinehart supra 230 Cal App 4th at pp 434 435 15 Page The Rinehart court distinguished its case from South Dakota Mining in that sections 5653 and 5653 1 read together or alone do not expressly prohibit the issuance of suction dredge mining permits Nevertheless the Rinehart court determined that has no bearing on the result because while the F G C sections here do not expressly ban suction dredge mining they do require a state permit for such mining and however as currently applied California law as embodied in the words and application of section 5653 1 acts to prevent the issuance of such permits Rinehart supra 230 Cal App 4th at pp 435 436 In the case at hand there is no particular argument from any party that permits will not and cannot be issued in the near or far future for years if ever This is fundamentally unfair and clearly operates as a de facto ban In any event as argued by Rinehart in practical operation sections 5653 and 5653 1 have since 2009 banned suction dredge mining in California and there is no commercially viable way to discover and extract the gold or other minerals lying within his mining claims other than suction dredge mining so the effect of the statutory scheme is to deprive him of rights granted to him under federal law Rinehart supra 230 Cal App 4th at p 436 The Rinehart court then stated Put differently and in the language of the hypothetical used by the court in Granite Rock if sections 5653 and 5653 1 are environmental regutations that are so severe that a particular land use in this case mining become s commercially impracticable Granite Rock supra 480 U S at p 587 then they have become de facto land use planning measures that frustrate rights granted by the federal mining laws and thus have become obstacles to the realization of Congress s intent in enacting those laws If that is the case as defendant alleges the Fish and Game Code provisions at issue here are unenforceable as preempted by federal mining law 16 Page Rinehart supra 230 Cal App 4th at p 436 Nonetheless the Rinehart court while acknowledging that defendant had made a colorable argument to that end could not determine on the record before it that as a matter of law the criminal provisions of section 5653 read in light of the provisions of section 5653 1 were rendered unenforceable because the California statutes have rendered the exercise of rights granted by the federal mining laws commercially impracticable Granite Rock supra 480 U S at p 587 Rineharf supra 230 Cal App 4th at p 436 In contrast the record made by the miners in the instant case is sufficient Therefore the Rinehart court returned 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 Rinehart supra The Cour here answers yes to both questions Kimble MSA on it s 1St COA and PLP MSA on it s 4t COA Kimble argues that most suction dredge mining in California occurs on Federal lands where a miner has validly located and filed a Federal mining claim pursuant to Federal mining law This creates for the miner an enforceable property right under Federal law to extract all minerals from his mining claim Suction dredge mining is the only 17 Page economical and environmentally sound method for extracting minerals from California s rivers and streams But F G Code 5653 1 since 2009 along with the CDFW new regulations in 2012 prohibits Federal prospectors and miners who hold Federal mining claims and mineral estates from engaging in suction dredge mining on Federal lands Accordingly Kimble contends they are entitled to summary adjudication of the federal preemption cause of action as a matter of law since the California statute and regulations impermissibly conflict with the 1872 General Mining Law as amended 30 U S C 22 54 and the 1976 Federal Land Policy Management Act 43 U S C 1701 et seq which provide that all valuable mineral deposits in lands belonging to the United States shall be free and open to mineral development Kimble argues that CDFW has admitted that its 5653 1 constitutes a complete prohibition on suction dredge mining because the mandated new regulations have not and cannot fully mitigate all identified significant environmental impacts pursuant to F G Code 5653 1 b 4 and therefore constitutes a physical impossibility to comply with both State and Federal law citing among other cases California Coastal Commission v Granite Rock Co 1987 480 U S 572 581 Granite RocK Kimble argues 1 Based on the 2012 FSEIR determinations of project specific significant and unavoidable effects under CEQA in the areas of water quality and toxicology biological resources cultural resources and noise and significant and unavoidable cumulative effects under CEQA re wildlife species and their habitats water turbidity TSS discharges and mercury resuspension and discharge the CDFW s new 2012 regulations cannot fully mitigate all identified significant environmental effects http www df ca ov suctiondred e See CDFW Findings of Fact for Suction Dredge Permitting Program March 16 2012 Karuk Tribe RJN Ex J 18 Page r The general rule is that where the state law stands as obstacle to the accomplishment the full purposes and objectives of Congress it is preempted Granite Rock supra 480 U S 575 592 see also Perez v Campbell 402 U S 637 1971 any state legislation which frustrates the full effectiveness of Federal law is rendered invalid by the Supremacy Clause regardless of the underlying purpose of its enactors The all pervading purpose of the mining laws is to further the speedy and orderly development of the mineral resources of our country United States v Nogueira 403 F 2d 816 823 9th Cir 1968 see also 30 U S C 21a 1 The continuing policy of the Federal Government in the national interest to foster and encourage private enterprise in the development of the economically sound and stable domestic mining minerals metal and mineral reclamation industries To further these vital public policies the 1872 Mining Act declares 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 by citizens of the United States 30 U S C 22 PLP makes essentially the same arguments Rulinq On their motions for summary adjudication the Court finds there is no triable issue of material fact on the issue of Federal Preemption and that as a matter of law and in actual fact that the State s extraordinary scheme of requiring permits and then refusing to issue them whether and or being unable to issue permits for years stands as an obstacle to the accomplishment of the full purposes and objectives of Congress under Granite Rock and a de facto ban Material facts 1 5 Kimble Material Facts 1 6 PLP 19 Page r Evidence Declarations of Goldberg Hobbs Keene Tyler Maksymyk New 49 ers MSA on it s 2 d COA In the second causes of action of the New 49 ers FAC Plaintiffs allege that through the 1872 Mining Law as amended and related statutes Congress created federal property rights in mining claims in furtherance of general federal policy to foster mineral development on federal lands Also Congress possesses plenary power over federal property under the Property Clause U S Const Art IV 3 FAC 62 The New 49ers allege that the CDFW Actions F G Code 5653 1 and regulations thereunder individually and or in any combination thereof are void as against the U S Constitution on the ground of the Supremacy Clause U S Constitution Article VI Clause 2 insofar as they interFere with the federal purpose of fostering mineral development on federal property and stand as an obstacle to the accomplishment and execution of the purposes and objectives of Congress FAC 63 The New 49 ers argue they are entitled to summary adjudication of their second cause of action for federal preemption of F G Code 5653 1 and portions of the regulations set forth at 14 Cal Code of Regs 228 et seq which operate to forbid Plaintiffs from mining their claims The New 49 ers acknowledge that the State of California has lawful power to enact reasonable environmental regulations that do not materially interfere with mining operations Granite Rock however the New 49 ers argue that the State cannot lawfully require permits and then refuse to issue them forbid mining entirely in certain areas or require miners to participate in a lottery to obtain a very limited number of permits 20 Page Specifically the New 49 ers contend the challenged statutory and regulatory restrictions on suction dredge mining are preempted by federal law based on its arguments regarding the nature of rights in mining claims under Federal law and regulations and the doctrine of federal preemption generally and in the mining context The arguments of the New 49 ers are similar to those of PLP and Kimble Rulin On its motions for summary adjudication the Court finds there is no triable issue of material fact on the issue of Federal Preemption and that as a matter of law and in actual fact that the State s extraordinary scheme of requiring permits and then refusing to issue them whether and or being unable to issue permits for years stands as an obstacle to the accomplishment of the full purposes and objectives of Congress under Granite Rock and a de facto ban Material Facts 1 6 Evidence Buchal declaration CDW MSA aqainst Kimble PLP and New 49 ers The CDW motions for summary adjudication as to Kimble PLP and New 49 ers is denied for reasons discussed above Prevailing parties to prepare notice and order 21 CIV 150501 JCP DS4720 ORDR 151002 Scanned Document Coversheet System Code CIV Case Number DS4720 CaseType JCP THIS COVERSHEET IS FOR COURT Action Code ORDR PURPOSES ONLY AND THIS IS NOT Action Date 05 01 15 A PART OF THE OFFICIAL RECORD A t nTme 3 o YOU WILL NOT BE CHARGED FOR Action Seq 0002 THI S PAGE Printed by GBRUN Order ON CROSS MOTIONS FOR SUMMARY ADJUDICATION RE PREEMPTION FILED IN KIMBLE ET AL filed NEWFILE 1 KAMALA D HARRIS Attorney General of California 2 ROBERT W BYRNE Senior Assistant Attorney General I L E D 3 Gavm G MCCABE SUPERIOR COURT Supervising Deputy Attorney General COUNTY OF SAN BERNARDINO 4 BRADLEY SOLOMON SBN 140625 SAN SEIRNARQINO DISTRICT BARBARA SPIEGEL SBN 144896 A4AY p Zn15 S MARC N MELNICK SBN 168187 J KYLE NAST SBN 235883 6 Deputy Attorneys General 455 Golden Gate Avenue Suite 11000 7 San Francisco CA 94102 7p04 Telephone 415 703 5627 8 Fax 415 703 5840 E mail Bradley Solomon@doj ca gov 9 Attorneysfor Defendants Department ofFish Wildlife 10 SUPERIOR COURTOF THE STATE OF CALIPORNIA 11 COUNTY OF SAN BERNARDINO 12 13 Coordination Proceeding Special Title Rule 14 1550 b Coordinated Case No JCCP4720 15 PROPOSED ORDER ON CROSS SUCTION DREDGE MINING CASES MOTIONS FOR SUMMARY 16 ADJUDICATION REGARDING PREEMPTION FILED IN KIMBLE et al 17 v HARRIS et a San Bernardino County Case No CIVDS1012922 PUBLIC 18 LANDSFOR THE PEOPLE INC et al v CALIFORNIA DEPARTMENTOF FISH 19 AND WILDLIFE et al San Bernardino County Case No CIVDS1203849 AND 20 THE NEW49 ER SINC et al v CALIFORNIA DEPARTMENT OF FISH 21 ANDGAME et al Siskiyou County Case No SCCVCV1099482 22 23 Included Actions 24 Karuk Tribe of California et al v California RG 12623796 Alameda County 25 Department ofFish and Game 26 Kimble et al v Kamala Harris Attorney CIVDS 1012922 San Bernardino County General of California et al 27 28 t Proposed Order on Cross Motions For Summary Adjudication Regarding Preemption Coordinated Case No JCCP4720 1 Public Lands for the People et al v California CIVDS 1203849 San Bernardino County Department of Fish and Game 2 The New 49er s et al v State of California SCCVCV 120048 Siskiyou County 3 California Department of Fish and Game et al 4 Walker v Harris et al 34 2013 80001439 Sacramento County 5 Foley et al v California Department of Fish SCCVCV1300804 Siskiyou County and Wildlife et al 6 7 8 The Motions of Plaintiffs in Kimble et al v Kamala Harris Attorney General of 9 California et al Petitioners Plaintiffs in Public Landsfor the People et al v California 10 Department ofFish and GanZe and Plaintiffs in The New 49er s et al v State of California 11 California Department ofFish and Game et al for Summary Adjudication regarding preemption 12 and the Motions of Defendants for Summary Adjudication regarding preemption in those three 13 cases came on for hearing on May 1 2014 All parties appeared through their attorneys 14 After considering 1 the papers filed in support of and in opposition to the motions and 2 15 the oral argument of counsel the Court rules as follows on the motions for summary adjudication 16 1 The Court finds there is no triable issue ofmaterial fact on the issue ofFederal Preemption 17 and that as a matter of law and in actual fact that the State s extraordinary scheme of requiring 18 permits and then pursuant to Fish and Game Code section 5653 1 refusing and or being unable to 19 issue permits for years stands as an obstacle to the accomplishment of the full purposes and 20 objectives of Congress under California Coastal Commission v Granite Rock Co 1987 480 21 U S 572 and a de facto ban This defacto ban created by Fish and Game Code section 5653 1 on 22 suction dredge mining permits has rendered commercially impracticable the exercise of 23 plaintiffs petitioners mining rights as granted by the federal government 24 2 The Court grants summary adjudication as a matter of law of the first cause of action for 25 federal preemption in Kimble et al v Kamala Harris Attorney General ofCalifornia et al San 26 Bernardino County Case No CIVDS 1012922 The evidence in support of this finding includes 27 28 2 Proposed Order on Cross Motions For Summary Adjudication Regarding Preemption Coordinated Case No JCCP4720 a ye 1 Material Facts 1 5 and the Declarations of Gary Goldberg Gerald Hobbs Patrick Keene Steve 2 Tyler and Eric Maksymk California Code of Civil Procedure Section 437c g 3 3 The Court grants summary adjudication as a rnatter of law of the fourth cause of action for 4 federal preemption in Public Lands for the People Inc et al v California Department ofFish 5 and Game San Bernardino County Case No CIVDS1203849 The evidence in support of this 6 finding includes Material Facts 1 6 and the Declarations of Gary Goldberg Gerald Hobbs Patrick 7 Keene Steve Tyler and Eric Maksymk California Code of Civil Procedure Section 437c g 8 4 The Court grants summary adjudication as a matter of law of the second cause of action for 9 federal preemption in The New 49 ers Inc et al v California Department ofFish and Game et 10 al Siskiyou County Case No SCCVCV 1099482 The evidence in support of this finding 11 includes Material Facts 1 6 and the Declaration of James L Buchal California Code of Civil 12 Procedure Section 437c g 13 5 The California Department of Fish and Wildlife s motions for summary adjudication as to 14 Kimble PLP and The New 49 ers are denied for these same reasons 15 IT IS SO ORDERED 16 17 1 g Dated l 19 HON GILBERT CHOA Judge of the Superior Court 20 21 ta L 3 G it A 22 23 24 25 26 2 SF2010202278 Proposed Order doc 28 3 Proposed Order on Cross Motions For Summary Adjudication Regarding Preemption Coordinated Case No JCCP4720 Send me your email address and I will be happy to email you the PDF files along with the 1994 Fish & Game Regs that should be followed. 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