Dave Mack

“Motion to the Superior Court of San Bernardino to Allow Suction Dredging on New 49’er-controlled Properties Under the 2012 Regulations until the Regulations can be Updated in a Way That Does Not Break the Law.”

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“Sometimes, anything is better than nothing!”

Update as of the 4th of July, 2015:

Judge Ochoa of the Superior Court of San Bernardino recently issued an Order which confirmed his earlier Ruling that California created an unconstitutional “scheme” of first enacting Section 5653 of the DFW Code which requires suction gold dredgers to obtain a permit from the State, and then enacting Section 5653.1 which prevented the Department of Fish & Wildlife (DFW) from issuing any suction dredge permits.  His Order and Ruling declared that the State’s moratorium preventing the issuance of permits is unconstitutional, illegal and unenforceable.

This was a huge win for our industry!

The problem is that the State is continuing to enforce the unlawful moratorium! 

First we attempted to motion the Siskiyou County Superior Court to order State authorities to stop harassing New 49’er members who were dredging along the Klamath River.  But we were prevented from bringing  that motion because the California Judicial Council has decided that all suction dredging-related cases will be consolidated in the Superior Court of San Bernardino.

Because there are multiple dredging cases being heard in San Bernardino, with multiple individuals and other mining associations having a stake in the outcome, The New 49’ers did not believe it would be acceptable to the rest of the industry if we initially filed a motion in San Bernardino for relief only on behalf of our own members and property holdings.  Therefore, we teamed up with the others in the ongoing litigation to file a joint motion for statewide relief.  Please go to this page for more background explanation, along with the very substantial attempt we made to try and get all California dredgers back into the water this season.

However, on the 23rd of June, Judge Ochoa denied our motion for statewide relief. If you want to get a good feel for how definite his denial was, you can read the hearing transcript right here.  Perhaps we tried to bite off more than the court was willing to allow.

Now that we have made our absolute best effort to bring about relief for the entire state and failed, we have received consent from all parties within the litigation to motion the court for much narrower relief on behalf of New 49’er members on New 49’er properties in Siskiyou County.  This was what we originally intended to do in Siskiyou County several months ago.  Our motion for a Temporary Restraining Order will be filed in San Bernardino on 6 July; and we hope it will be decided this coming Thursday, 9 July.  To save on travel costs, we have requested the hearing to take place by telephone conference.

Our key moving documents, proposed Order and supporting Declarations can be found just below.  You will see that we are challenging the ongoing moratorium under an entirely different legal theory which does not rely upon the Third Appellate Rinehart Decision.  My understanding is that the San Bernardino Court was not willing to grant statewide relief because of the possibility that the Rinehart Decision could be overturned by the California Supreme Court.

While we strenuously believe the 2012 regulations are overly restrictive, and we will continue the ongoing effort to obtain much more reasonable regulations, we have already completely lost 5+ dredging seasons because of the unlawful moratorium; and we believe it is better to get people back in the water while we continue the fight. This is a beginning.

Said another way, since the State certified that dredging under the 2012 regulations will not harm fish, we should at least be able to dredge within those regulations while we continue to challenge them as overly restrictive.  In the event that we succeed, there is nothing preventing others from seeking similar relief: