May 22 2014
Today I learned that on May 20th, the California Court of Appeals denied my motion to file a response to an amicus brief filed by the environmentalists, and on May 21st, the Court issued a request for oral argument waiver.
I do not take the denial of leave to file a response to the brief of the environmentalists as a positive sign, though one can argue that much of the brief they presented attempting to blacken suction dredge mining was simply irrelevant to the question of federal preemption.
As for the request for waiver of oral argument, this appears to be a document issued in perhaps half of California appeals which indicates that the Court does not have any questions, and invites us to waive oral argument--or not. I do not actually have the document in hand from the Court, which was mailed today and has not yet arrived. Again I do not take this as a positive sign, though the court could easily rule that it is obviously wrong to prosecute someone for not having a permit the Department categorically refuses to issue.
Mr. Rinehart thus faces the question whether to insist on oral argument, which involves perhaps $2,000 in expenses to present ten minutes of argument (travel to Sacramento is the predominant expense). Alternatively, he might waive oral argument to conserve resources for the next level of appeal, if necessary. He must make up his mind by June 2, 2014.
The timing is interesting, because it is possible that waiving argument would permit the Court of Appeals to issue an opinion on federal supremacy while the federal supremacy issue is pending before Judge Ochoa in San Bernardino County, and potentially even before the June 24th settlement conference scheduled in that case. In a perfect world, the Court of Appeals would endorse federal supremacy and strike down the statute barring the Department from issuing permits, and the settlement discussions might actually be productive. This, however, seems the less likely alternative to me.
Judge Ochoa is likely to follow whatever the Court of Appeals decides, but if he writes on a clean slate, he seems more likely to support federal preemption than the Court of Appeals. And his ruling might even be appealed to a different district of the Court of Appeals (I have not had a chance to check this for sure), creating a greater chance of getting Supreme Court review later if differing opinions result in the two districts.
In a perfect world of unlimited resources, it would probably be somewhat more advantageous to the mining community as a whole to request oral argument and avoid prejudicing Judge Ochoa--though that assumes an adverse Court of Appeals decision, prediction of which is little more than speculation. Mr. Rinehart's decision one way or another may be influenced by any financial contributions that might be made to assist him in funding oral argument.
Judge Ochoa is expected very shortly to issue the actual order requiring personal or telephonic participation in the June 24th settlement conference, and I will forward that along to the litigation participants as soon as I receive it with further details. The Department has been inquiring as to what the settlement position is, and I have maintained that, at a bare minimum, it would include opening areas closed by the new regulations and issuing permits.
May 24 2014
May 25 2014
May 29 2014