All posts by Tom Kitchar

SB 838

SB 838

SENATE BILL 838
&
OREGON’S WAR
ON MINING

MINERS FILE SUIT IN FEDERAL COURT
AGAINST SB 838

Lessons learned from the California experience told us that any challenge to SB 838 had to be in Federal Court – anything else would be a Court of Foxes ruling on the Henhouse (i.e.; no sense in asking a State court to rule against a State law banning rights on lands of the United States).  We also had to wait until it was a “sure thing” that SB 838’s Five Year Moratorium would go into effect – which meant waiting until the 2015 Oregon legislative session ended without revoking SB 838.  By mid-summer 2015 the legislative session was over, and SB 838 was still the law in Oregon.  After waiting several more months hoping that someone else would step-up and file a suit to stop this madness – which no one did; and after being asked by many to do something, along with promises of support ($$), WMD finally decided that Waldo would get involved.

However, upon the advice of our attorney (James Buchal), Waldo (or myself) could not be a plaintiff as we were already plaintiffs in state court against DEQ and their illegal suction dredge mining permit (there was concern that if any of the DEQ plaintiffs were plaintiffs in the SB 838 suit that the federal court would refuse to hear our case and move us to State court).  So, after finding new plaintiffs, the Waldo and Galice Mining Districts hired attorney James Buchal to take on this important case.  Waldo & Galice are the “clients”, responsible for paying the bill.

On October 19, 2015, a Complaint was filed:

IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF OREGON, MEDFORD DIVISION
Case No. 1:15-CV-01975-CL

PLAINTIFFS:  JOSHUA CALEB BOHMKER, LARRY COON, WALTER R. EVENS, GALICE MINING DISTRICT, JASON GILL, JOEL GROTHE, J.O.G. MINING LLC, MICHAEL HUNTER, MICHAEL P. LOVETT, MILLENNIUM DIGGERS, WILLAMETTE VALLEY MINERS, DON VAN ORMAN;

v.

DEFENDANTS:  STATE OF OREGON, ELLEN ROSENBLUM, in her official capacity as the Attorney General of the State of Oregon, and MARY ABRAMS, in her official capacity as the Director of the Oregon Department of State Lands.
As stated in the Complaint:

Injury to Plaintiffs

42.  Most of the plaintiffs hold federally-registered mining claims in Closed Areas, represent those who do, or mine such claims under right granted by the owners. These plaintiffs will be unable to mine those properties for the foreseeable future. Some miners will die before the moratorium ostensibly expires.

“CLICK HERE” TO READ THE MINERS’ COMPLAINT
FILED 10/19/16

On November 30, 2015, Plaintiffs filed a MOTION FOR SUMMARY JUDGMENT, Request for Oral Arguments and an Expedited Hearing.  U.S. Magistrate Judge Mark Clarke (instead of requiring a normal 30-day Response time), gave the State – who argued they (Attorney General’s office) were “Oh so busy” - (and environmental interveners) until Feb. 3 for the STATE RESPONCE; giving a short time for the MINERS’ REPLY, and a last minute filing of a Cross-Motion for Summary Judgment by the State before the Oral Hearing, which was held on Feb. 18, 2016,  in the U.S. Courthouse, Medford, OR..

In the State’s Cross Motion, they claimed that none of our plaintiffs had standing; and requested permission to submit a 2ND RESPONSE brief to the court after the hearing in Medford, which was granted.

This Cross-Motion by the State is seen as nothing but a delaying tactic designed to, if nothing else, eat-up our funds.  It is also another method used to deny Justice - in that normally, we would not have an opportunity to reply to the States brief, plus it would give them “the last word” – unless they brought up brand new issues not mentioned in earlier briefs or at the hearing . . . which they did.  For the first time, the State claimed that 30 USC Sec. 22 gives the states authority over mining and the methods used, and can even prohibit if they want.  We strongly disagree, and obtained permission to submit a MINERS’ SURREPLY brief, which was filed with the court on or about March 7, 2016.

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U.S. MAGISTRATE JUDGE MARK CLARKE RULES IN FAVOR OF SB 838

ON MARCH 29, 2016, Magistrate Clarke issued his Judgment
“… in accordance with the Court’s order (#67) in favor of the defendants.”

CONCLUSION

The Court agrees with the plaintiffs that the practice of mining has a long and cherished history in the State of Oregon, and a protected place in the law.  However, the Court can find no indication that such protection prevents the State of Oregon from temporarily banning the use of motorized instream equipment as a legitimate way to protect water quality and fish habitat.  The Mining Act and other federal regulations do not express an intent to preempt state environmental regulations affecting mining claims on federal land.  Senate Bill 838 does not directly conflict with federal law, nor does it stand as an obstacle to the accomplishment and execution of the full purposes and objectives of Congress because, under the law, "the 'valuable mineral deposits in lands belonging to the United States' in Oregon remain 'free and open' to mineral exploration and development by means other than the use of motorized equipment.

ORDER
For the forgoing reasons, the plaintiffs' motion for summary judgment (#18) is DENIED.  Defendants' motion for summary judgment (#52) is GRANTED.

“CLICK HERE” TO READ THE MAGISTRATE’S
COMPLETE 17 PAGE ORDER OF 03/25/16

MINERS’ APPEAL FILED
IN THE
U.S. 9TH CIRCUIT

Although disappointing, Magistrate Clarke’s judgment of March 25 was not surprising, nor was it unplanned for.  Right from the start we knew that this case would probably end up in the U.S. 9th Circuit Court of Appeals – regardless of who won (albeit we would much prefer defending a Win rather than appealing a Loss). 

ON APRIL 7, 2016, the Miners filed a Notice of Appeal/Petition with the U.S. 9th Circuit Court of Appeals. The Court has issued a Scheduling Order, with:

Miner’s Opening Brief due July 14, 2016,
and

State’s Answering Brief due Aug. 15, 2016.

Unfortunately, this means that SB 838’s moratorium will be in effect this coming summer/fall, as the earliest we can logically expect a decision would be sometime next winter. 

“CLICK HERE” TO READ THE MINERS’
APPEAL/PETITION TO THE U.S. 9TH CIRCUIT
This Document Not Due Until July!

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WE NEED YOUR SUPPORT

To date, Waldo & Galice Mining Districts have raised and spent $1,000’s of dollars on this important litigation, and more $1,000’s will be needed to get us through with hopefully a clear WIN IN THE U.S. 9TH CIRCUIT.

A WIN in Oregon will go a long way to turn around state(s) over-regulation and prohibitions on mining on lands open to mining under the 1872 Mining Law.

PLEASE HELP US FIGHT TO PROTECT ALL CITIZENS
RIGHTS GRANTED UNDER THE MINING LAW . . .
AND MAKE A DONATION TODAY.

“CLICK HERE” TO SUPPORT OUR CAUSE
AND MAKE A DONATION

Put bluntly, if states like California and Oregon can get away with putting blanket closures on vast areas of lands and streams Open to Mining under the 1872 Mining Law by banning the use of, in many cases “the only” reasonable methods practical to recover the minerals, then all but large-scale mining will be possible – and the days of the Individual Prospector & Miner will be a thing of the past.

WE WIN NOW . . .  OR LOSE FOREVER !