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Steve Herschbach

Latest On California Gold Dredging Legal Battle

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A current and very well explained view of the current situation regarding suction dredging in California.

http://www.goldprospectors.org/News/News-Details/ArtMID/3269/ArticleID/162/Dredgers-defend-mining-rights-in-California-Supreme-Court-

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That's a bit to digest but it sounds like there is reason to be optimistic that within 90 days a favorable decision may be rendered.  Hopefully favorable to miners.

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The state is making the argument that the moratorium doesn't conflict with federal mining law because there are no stipulations in federal law that the claimaint's operation be economically viable.

Quote

Melnick said. “A ban deprives him [Rinehart] of all of this mining claim. Know he can mine on the land or mine with non-motorized methods and he can wait until the moratorium ends. But, the economic viability is not important.

But this is wrong!

The BLM can devalidate your claim if you don't pass the Marketability Test as defined by the Secretary of the Interior in 1933.

Quote

 "...a mineral locator or applicant, to justify his possession must show by reason of accessibility, bona fides in development, proximity to market, existence of present demand, and other factors, the deposit is of such value that it can be mined, removed, and disposed of at a profit."

Which seems to me that it makes Melnick's argument moot and prooves Rinehart has a valid complaint. If there is a state law preventing you from mining at a profit then the State themselves are preventing a claimant from meeting the Federal regulations and that should be enough to win the case. Shouldn't it?

If there is dispute over the defintion of "profit" in that rule then the Prudent Man Rule, which we as claimants must also follow, can be used to define it:

Quote

"Where minerals have been found and the evidence is of such a character that a person of ordinary prudence would be justified in the further expenditure of his labor and means, with a reasonable prospect of success, in developing a valuable mine, the requirements of the statute have been met."

It's pretty hard for a prudent man to justify expenditure of labor and means, with any prospect of suceess with a freakin' pan and a shovel. Let alone "developing a valuable mine". I think a guy would have trouble maintaining minimum wage doing that, and no court will define that as "success" or "valuable".

Why isn't this argument being made? If the federal regulations require claimants to meet these standards, then a state law that prevents us from meeting them is surely a violation. It also disproves Melnick's assertion that "economic viability is not important". Not only is it important to the miner, but it's REQUIRED by federal law.

Barry (Clay)...? What do you think?

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The fact that the state is allowed to put a moratorium on something white it does it's  quote "study" is complete BS. Go ahead and do your studies get your proof...and then go to court if need be...

strick

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Also, has anyone filed for a NOI to operate a suction dredge on their claim in Califonia and then been unable to follow through with their plan? That there seems like it'd be a pretty solid court case to me because no one can reasonably expect, or argue that a miner must be expected to move 1000 tons of gravel in an active rivercourse only by non-motorized means by any legal defintions that I know of - economically viable or not, it's just an unreasonable expectation. Especially if you state that the time period for your plan is 2 weeks of work or something along those lines. Also, it's not just removing the gravel, processing 1000 tons of gravel in a stream sluice is going to be near impossible without building something so big that it itself becomes an environmental impact.

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 If there was a federal law that said all mining claims had to be economically viable, the BLM would not issue a single Plan of Operations without a validity exam having been performed. This has gone to court. Nothing in law says BLM must do a validity exam before approving a Plan (exception is for Withdrawn lands).

 The Prudent Man test and marketability only come into play if you are applying to patent or the government contests your claims, for some reason. Or, as above, your claims are on withdrawn lands.

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A very thoughtful article.  It'll be interesting to hear what the results are and see what the state does in response.

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