The Battle in Oregon - Update
Posted: Sun Jan 06, 2019 5:50 am
A RAY OF HOPE FOR THE NEW YEAR: For those that don't know, in 2014 Oregon followed California's lead to stop suction dredge (and other) mining (by passing Senate Bill 838 (SB 838)), which called for a 5 year Moratorium starting Jan. 2016 on the use of "all motorized placer mining equipment" used "in-stream" and within 300 feet of all streams designated by the Dept. of State Lands as "Essential Salmon Habitat" (ESH).
NOTE: 80-90% of the gold bearing streams in Oregon are designated as ESH.
In 2015, after the Legislature failed to amend or revoke SB 838, the Waldo & Galice Mining Districts of Josephine Co, OR retained James Buchal to file a Complaint (BOHMKER (et al) V. OREGON) against SB 838 in Federal Court (Medford District).
ROUND 1: A Hearing was held Feb. 18, 2016 in Medford, OR, and on March 29th Magistrate Mark Clarke issued his decision upholding SB 838, stating that banning all motorized equipment was not prohibiting mining as miners could still work by hand.
ROUND 2: We then filed an Appeal in the U.S. 9th Circuit (Portland); and after months of replying to many amicus briefs filed by CA&WA, the U.S. DOJ, and a coalition of "law professors" (all supporting the States ban on mining); and after Oregon repealed SB 838 and replaced it with Senate Bill 3 (SB 3) -- [SB 3 repealed all of SB 838, and then placed a permanent prohibition on the use of any or all motorized in-stream placer mining equipment in ESH streams. This forced another round of Briefs that the Miner's case was not moot (as SB 3 was the same as SB 838 only worse - PERMANENT).., and the court agreed] -- a Hearing was held in the U.S. 9th Circuit on March 3, 2018, in Portland, OR.
On Sept. 12, the court issued it's 2-1 Decision upholding the Medford court's decision stating that SB 3 was "reasonable restriction to protect the environment", was not a "Land Use Plan", and did not prohibit "all mining" as miners were free to mine by hand, or go all the non-ESH streams (as if there's gold everywhere).
On Sept. 24, 2018, the Miners filed a Request for an "en banc" (whole court) re-hearing by the U.S. 9th Circuit.
On Oct. 27, 2018, the U.S. 9th Circuit DENIED our request...
ROUND 3: ...OPENING THE DOOR TO THE THE U.S. SUPREME COURT.
Our case is very similar to the earlier cases in CA (such as Rinehart) - at least as far as the abuse of the Mining Law goes and State authority over mining without the complication of being a Defendant, or the politics in State Courts.
Our filing is due towards the end of January . . . and then we wait to see if the high court will accept our Petition and hear our case.
All hope is not lost... we have many allies and friends including The New 49ers Gold Prospecting Association (who made a very generous donation to our Legal Fund). We are expecting amicus briefs in support of mining from Pacific Legal Foundation, Mountain States Legal Foundation, and hopefully others.
It has taken us years to get to this point, and many $1,000's of dollars... and we've finally got to the doorstep of the one court that can turn all this anti-mining legislation around.
We are the Proverbial "IT" . . . for all the marbles (at least for years to come).
Wish us luck . . . and even better please support our efforts.
For more information on how you can make a donation, enter our upcoming Drawing, along with more information regarding the litigation (including copies of all Briefs & Decisions) please visit us at: www.waldominingdistrict.org
AND HAPPY NEW YEAR!
*** Never doubt that a small group of thoughtful, committed people can change the world.
Indeed, it's the only thing that ever has!" *** (Margaret Mead)
NOTE: 80-90% of the gold bearing streams in Oregon are designated as ESH.
In 2015, after the Legislature failed to amend or revoke SB 838, the Waldo & Galice Mining Districts of Josephine Co, OR retained James Buchal to file a Complaint (BOHMKER (et al) V. OREGON) against SB 838 in Federal Court (Medford District).
ROUND 1: A Hearing was held Feb. 18, 2016 in Medford, OR, and on March 29th Magistrate Mark Clarke issued his decision upholding SB 838, stating that banning all motorized equipment was not prohibiting mining as miners could still work by hand.
ROUND 2: We then filed an Appeal in the U.S. 9th Circuit (Portland); and after months of replying to many amicus briefs filed by CA&WA, the U.S. DOJ, and a coalition of "law professors" (all supporting the States ban on mining); and after Oregon repealed SB 838 and replaced it with Senate Bill 3 (SB 3) -- [SB 3 repealed all of SB 838, and then placed a permanent prohibition on the use of any or all motorized in-stream placer mining equipment in ESH streams. This forced another round of Briefs that the Miner's case was not moot (as SB 3 was the same as SB 838 only worse - PERMANENT).., and the court agreed] -- a Hearing was held in the U.S. 9th Circuit on March 3, 2018, in Portland, OR.
On Sept. 12, the court issued it's 2-1 Decision upholding the Medford court's decision stating that SB 3 was "reasonable restriction to protect the environment", was not a "Land Use Plan", and did not prohibit "all mining" as miners were free to mine by hand, or go all the non-ESH streams (as if there's gold everywhere).
On Sept. 24, 2018, the Miners filed a Request for an "en banc" (whole court) re-hearing by the U.S. 9th Circuit.
On Oct. 27, 2018, the U.S. 9th Circuit DENIED our request...
ROUND 3: ...OPENING THE DOOR TO THE THE U.S. SUPREME COURT.
Our case is very similar to the earlier cases in CA (such as Rinehart) - at least as far as the abuse of the Mining Law goes and State authority over mining without the complication of being a Defendant, or the politics in State Courts.
Our filing is due towards the end of January . . . and then we wait to see if the high court will accept our Petition and hear our case.
All hope is not lost... we have many allies and friends including The New 49ers Gold Prospecting Association (who made a very generous donation to our Legal Fund). We are expecting amicus briefs in support of mining from Pacific Legal Foundation, Mountain States Legal Foundation, and hopefully others.
It has taken us years to get to this point, and many $1,000's of dollars... and we've finally got to the doorstep of the one court that can turn all this anti-mining legislation around.
We are the Proverbial "IT" . . . for all the marbles (at least for years to come).
Wish us luck . . . and even better please support our efforts.
For more information on how you can make a donation, enter our upcoming Drawing, along with more information regarding the litigation (including copies of all Briefs & Decisions) please visit us at: www.waldominingdistrict.org
AND HAPPY NEW YEAR!
*** Never doubt that a small group of thoughtful, committed people can change the world.
Indeed, it's the only thing that ever has!" *** (Margaret Mead)