Dan Walters

Dan Walters: Californians with gold fever strike a legal lode

Dan Walters
Dan Walters

California explosively emerged as a place of importance – and quickly became a state – for one reason only: the 1848 discovery of gold in the American River.

Gold seekers poured into the state from around the world, creating what is still a unique society in what had been a remote coastal frontier, and the rest is, as they say, history.

Gold fever eventually abated, but 166 years after James Marshall spotted those flecks of gold in John Sutter’s sawmill at Coloma, some folks still seek what gold panners and the later hydraulic miners left behind in streams.

However, California has made it tough on modern-day miners who use vacuum dredges to suck up gold-bearing gravel. Environmental groups contend that the dredgers destroy the spawning beds of salmon and other fish, and have pressed the Legislature to crack down.

In 1999, language was clandestinely inserted into the state budget to place a moratorium on dredging – largely, it appeared, because a high-ranking state Senate staffer wanted to stop a neighbor from dredging a creek that both shared.

A decade later, in 2009, then-Gov. Arnold Schwarzenegger signed a “temporary moratorium” on state dredging permits that appears to have evolved into a permanent ban because the law’s conditions for lifting it are impossible to meet.

Brandon Rinehart collided with that law two years ago when he was charged with mining without a permit on a Plumas National Forest stream that he and his family had dubbed “Nugget Alley” and had dredged for many years with federal permits.

Rinehart was found guilty in Plumas County when a judge rejected his assertion that federal law allowing mining on federal lands supersedes the 2009 moratorium because the latter is a de facto ban on mining, not merely a permitting law.

Last week, Rinehart and other miners won a significant victory when the 3rd District Court of Appeal, based in Sacramento, unanimously overturned the trial court’s ruling on the federal law question and ordered it to rehear Rinehart’s contentions about a de facto ban and federal pre-emption.

The appellate court ruling extensively cites federal court rulings in other states that local and state restrictions on mining cannot absolutely prohibit it on federal lands because the federal Mining Act of 1872 specifically includes “the encouragement of exploration for and mining of valuable minerals located on federal lands, providing 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.”

It’s a big win for the Western Mining Alliance, based in Reno, and Sacramento’s Pacific Legal Foundation, which litigates property rights cases.

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