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Persecuted gold mining hobbyist may be headed for U.S. Supreme Court

By   /   February 17, 2017  /   News  /   No Comments

Brandon Rinehart and his dad have long shared a unique activity — searching for gold on their federal mining claim in northern California.

“My father always took me up in the mountains to fish and prospect. [He was] always telling me stories about the big nuggets grandpa found in this spot and that spot,” Rinehart chronicles on his website.

PHOTO CREDIT: The Pacific Legal Foundation

GOLDEN DREAMING IN CALI: A state law banning suction dredge mining for gold on federal land could end up before the U.S. Supreme Court.

As an adult, the union electrician turned his childhood hobby into a fairly lucrative part-time enterprise, clearing around $750 in gold for five hours of prospecting. That’s a fairly decent haul in a state built upon the Gold Rush of 1849, and which still has around 20,000 mining claims on federal land.

But Rinehart’s pastime came to a screeching halt on June 16, 2012 — on Father’s Day. That’s when state authorities literally stopped Rinehart in midstream and charged him with a crime under a 2009 state law that bans suction dredge mining.

The technique uses a motorized vacuum cleaner-like filtering device to comb streambeds for gold. While suction dredges have been used by miners for more than 50 years, environmentalist groups sought to ban them over the potential impact on fish populations and water quality.

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Rather than pay the $832 fine and spend three years on probation, Rinehart fought the charge on the grounds his claim is on federal land and thus should preempt state law.

In 2014, an appeals court agreed with Rinehart as well as an amicus brief filed on his behalf by the Pacific Legal Foundation. But the California Supreme Court did not, and upheld the ban.

Lead attorney Jonathan Wood told Watchdog.org that by prohibiting one type of mining rather than sensibly regulating it, the state law conflicts with the federal Mining Act of 1872, in both spirit and letter. The PLF has asked the United States Supreme Court to weigh in. (See related PLF video here.)

“Several federal courts of appeals and state supreme courts have considered similar cases in the past and have all said states can regulate mining, that’s perfectly acceptable. But they cannot prohibit federally encouraged activity on federal land,” Wood explained. “This is a complete departure from the existing law. So we’ve asked the Supreme court to review it and overturn it to restore the law as it’s existed for decades.”

A ‘complete departure’ from existing law

The law itself has a complicated history. It stemmed from a 2005 lawsuit brought by the Karuk Tribe to protect coho salmon. The fish are important to the tribe’s culture, religion and subsistence and are protected under the Endangered Species Act.

The suit asked for a moratorium on suction dredge mining permits until the Department of Fish and Game (now called Department of Fish and Wildlife, or DFW) re-examined its mining rules to determine the activity’s potential harm to the fish population and the possibility dredging could stir up buried mercury.

The court ordered the review in 2006, but DFW took until 2012 to finish its review and suggest regulatory revisions. Frustrated by the foot-dragging of regulators, environmental groups including the Sierra Fund, the Center for Biological Diversity and the Environmental Justice Coalition for Water joined the Karuk Tribe to pressure lawmakers stop suction dredge mining.

The coalition got its wish in 2009 when lawmakers enacted a two-year ban on permits until completion of the court-ordered review by the DFW. The deadline was eventually lifted, which left the ban in place even though the DFW sent its report and recommendations to the Legislature in 2013.

The sticking points now appear to be money and authority.

The DFW report asked the Legislature for more of both to implement its revised regulations, something lawmakers have not yet done, effectively prohibiting the mining by refusing to regulate it.

2011 estimate by the DFW that it would need $1.8 million to implement new regulations — while bringing in only $373,000 in permit fees — prompted such an outcry among dredging opponents that legislators stripped the department’s funding to issue permits for five years. This move occurred despite an economic impact report that showed suction dredge miners in 2008 spent $7.3 million in California on equipment alone, and another $16.5 million in indirect trip-related purchases.

RELATED: Local management of Idaho lands: Is there a better path forward?

The longer suction dredging lingers in regulatory limbo, Wood says, his client’s case becomes more crucial, as implications could stretch far beyond mining or California.

“The immediate case is just a criminal case in which a part-time miner was ticketed and prosecuted for using a suction dredge equipment to work his federal claim,” he said. “But the underlying principle could affect any sort of federal land use. If the state wanted to get rid of mining entirely, [or] get rid of grazing or timber harvesting — anything that federal law encourages on federal land — if this decision stands, states could veto it.”

The state’s response to the Pacific Legal Foundation’s Supreme Court petition is due March 8.

In the meantime, the national significance of the battle is not lost on Rinehart, who stated on his website that it’s also personal.

“I hope to someday have the same opportunities around for my own kids to enjoy and that is why I am willing to stand up and fight for our rights and what I believe in.”

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Kathy Hoekstra is the regulatory policy reporter for Watchdog.org. Before joining Watchdog, she was a senior communications manager and Michigan state director for Job Creators Network, an advocacy organization that focuses on employee education. She has also been a TV news reporter and anchor, a contributor to the Detroit News and occasional guest-host for Frank Beckmann on WJR Radio in Detroit, and was an investigative reporter for the Mackinac Center for Public Policy. She lives in Michigan and is a member of Investigative Reporters and Editors.