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Dave_Mack
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Validity of California's Dredging Moratorium Challenged in Criminal Court! ( 09:49:00 SatDec 15 2012 )

You guys will be interested to know that the dredging moratorium is now being challenged in Plumas County Superior Court. There may be a fast track possibility of overturning the existing moratoriums in this case.

This case began with a criminal complaint against Brandon Renehart for possessing and using a suction dredge without a permit in violation of Section 5653 of the Fish & Game Code.

In response, our attorney, James Buchal (representing Brandon in this case) along with strong support from Public Lasnds for the People (PLP), challenged the criminal complaint on its face (called a "Demurrer" in California law) based upon federal supremacy laws. James makes a compelling legal argument that controlling case law in America prevents any State from enacting a prohibition against mining on the public lands -- which is clearly what the State of California has done through a moratorium which prevents permits from being issued until an impossible set of circumstances have been met.

In turn, the State has filed a vigorous response alleging that the current moratorium is just temporary; something we all know is blatantly false. But it is clear the State is fighting very hard to overcome the Demurrer. James' Reply to the State sets the record straight.

So now we will find out if the judge will dismiss the case or it will proceed to trial. My guess is that if the case is not dismissed here, since I believe there are no factual issues in dispute, and the resolution will be a matter of interpreting the law, this case could be rather quickly resolved in Summary Judgment. That could happen before the coming dredging season.

The above linked arguments make for interesting reading, because to a large extent, they mirror some of the main arguments that we are making in San Bernardino, a consolidation of civil cases that will perhaps take quite a bit longer to resolve.

In the event that the judge dismisses Brandon's case based upon the argument that California's present scheme of denying suction dredge permits to anyone is preempted by the supremacy clause, it would seem that suction dredging will immediately resume in California perhaps without any permits whatsoever. That would certainly be a reversal!

  
Oregon_Jim
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Re: Validity of California's Dredging Moratorium Challenged in Criminal Court! ( 16:17:07 SatDec 15 2012 )

I LOVE waking up to good news. This sounds very promising! :doublethumbsup: I wish I understood the legal language better, but it appears to me the reply just kicks the state's butt. This could be the case everyone has been waiting for!
[1 edits; Last edit by Oregon_Jim at 16:37:47 Sat Dec 15 2012]

  
ratled
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Re: Validity of California's Dredging Moratorium Challenged in Criminal Court! ( 16:23:32 SatDec 15 2012 )

Thanks for posting this!!! Is there anything that we as a group can do to help? I'm sure money is needed for the case, but where should we send this? Also what about being in court? If for no other so Brandon knows he doesn't stand alone!

ratled

  
Jim_Alaska
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Re: Validity of California's Dredging Moratorium Challenged in Criminal Court! ( 17:52:09 SatDec 15 2012 )

This is exactly what has been needed. A court case that can be argued using the Supremacy Clause, which simply means that the Feds. trump any state law on Federal ground.

A legal argument based on the fact that the State laws are conflicting with the federal laws, which are the supreme law of the land, must prevail.

James Buchal is exactly the one to argue this sort of thing. Miners have spent a lot of time and money, both here, as well as in Oregon and Washngton State, educating James on mining rights and laws.

We have a very real opportunity here to actually get this mess turned around.



---
James Foley
Property and Mining Rights Advocate
Horse Creek, California
jfoley@sisqtel.net
 
 
Rod_Seiad
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Re: Validity of California's Dredging Moratorium Challenged in Criminal Court! ( 17:59:03 SatDec 15 2012 )

Thank goodness gold dredgers do still and should continute to, believe in Plumas County CA. A short research on google will describe our fortunate location of court.

The criminal complaint was preceeded by a citation. Is there a link handy for that document?

Dismissal would be a fast track for sure. I'm not certain that a trial in the Feather Rivers area of the mother lode might be better. It's close to Sacramento and the media could be a large component. Gold dredgers could receive a moment in the sun.

The ongoing environmental doctrine affecting the CDFG bootheel authority over Californians needs to be exposed and defeated in sound legal judgement.

  
JOE_S_INDY
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Re: Validity of California's Dredging Moratorium Challenged in Criminal Court! ( 19:33:38 SatDec 15 2012 )

And now we hold our breath ....

Joe



---
Wiser Mining Through Endless Personal Mistakes
 
 
Jim_Alaska
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Re: Validity of California's Dredging Moratorium Challenged in Criminal Court! ( 20:55:49 SatDec 15 2012 )

Buchal's reply to the states response is, or should be, more than enough for the court to grant the demmurer. He is great at analyzing a situation and finding the resources to counter the states supposed argument.



---
James Foley
Property and Mining Rights Advocate
Horse Creek, California
jfoley@sisqtel.net
 
 
leonard
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Re: Validity of California's Dredging Moratorium Challenged in Criminal Court! ( 21:25:19 SatDec 15 2012 )

The outcome here is interesting along other lines.

The Fed's in Colorado are saying that the federal drug law trumps the Colorado voters and the pot law recently passed allowing recreational use of pot. It seems that they can't say that the pot vote is negated but the California state law trumps the Feds about dredging. It would seem to me, a non-legally trainred person, that it has to go one way or the other. Either you can dredge and Colorado can't smoke pot or you can't dredge and we can smoke pot.

Leonard

Quote: Jim_Alaska at 17:52:09 Sat Dec 15 2012

This is exactly what has been needed. A court case that can be argued using the Supremacy Clause, which simply means that the Feds. trump any state law on Federal ground.

A legal argument based on the fact that the State laws are conflicting with the federal laws, which are the supreme law of the land, must prevail.


  
rivraton
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Re: Validity of California's Dredging Moratorium Challenged in Criminal Court! ( 03:31:46 SunDec 16 2012 )

Quote: leonard at 21:25:19 Sat Dec 15 2012

The outcome here is interesting along other lines.

The Fed's in Colorado are saying that the federal drug law trumps the Colorado voters and the pot law recently passed allowing recreational use of pot. It seems that they can't say that the pot vote is negated but the California state law trumps the Feds about dredging. It would seem to me, a non-legally trainred person, that it has to go one way or the other. Either you can dredge and Colorado can't smoke pot or you can't dredge and we can smoke pot.

Leonard

Quote: Jim_Alaska at 17:52:09 Sat Dec 15 2012

This is exactly what has been needed. A court case that can be argued using the Supremacy Clause, which simply means that the Feds. trump any state law on Federal ground.

A legal argument based on the fact that the State laws are conflicting with the federal laws, which are the supreme law of the land, must prevail.



Marijuana is still listed as a class 1 drug. under federal law. Whether the feds chose to prosecute offenders in Colorado is another question, if the do prosecute under federal law you will find out about supremacy, just ask some of the California "medical marijuana" dealers who have gotten federal attention...

  
Dave_Mack
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Re: Validity of California's Dredging Moratorium Challenged in Criminal Court! ( 04:01:02 MonDec 17 2012 )

Wow; this Demurrer Hearing is coming up this Tuesday! Let's all keep our fingers crossed!

  
keninla
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Re: Validity of California's Dredging Moratorium Challenged in Criminal Court! ( 04:03:29 MonDec 17 2012 )

I certainly hope this works out. It would be nice to be able to mine again.
good luck

  
rlh1946
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Re: Validity of California's Dredging Moratorium Challenged in Criminal Court! ( 05:23:46 MonDec 17 2012 )

Darn if we get our dredge rights back , I will have to buy a new wet suit I have gained a few to many lbs:confused:



---
proud father of a Army Soldier
"PLP" member
"NRA" member
"UFC" fan
Why don't anti-gun people have stickers on their windows that say "This is a gun free home"
 
 
ratled
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Re: Validity of California's Dredging Moratorium Challenged in Criminal Court! ( 15:34:53 TueDec 18 2012 )

Best of luck Brandon!!!!

Go get em James
[1 edits; Last edit by ratled at 15:43:10 Tue Dec 18 2012]

  
larrymo
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Re: Validity of California's Dredging Moratorium Challenged in Criminal Court! ( 03:23:06 WedDec 19 2012 )

Has anyone heard anything yet?

  
Dave_Mack
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Re: Validity of California's Dredging Moratorium Challenged in Criminal Court! ( 03:27:12 ThuDec 20 2012 )

Unfortunately, the judge decided that he could not resolve the factual issues (e.g., take judicial notice that Brandon was on his own claim) and that the case would have to go to trial. A pretrial conference has been set for 1/30.

  
Oregon_Jim
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Re: Validity of California's Dredging Moratorium Challenged in Criminal Court! ( 16:27:22 ThuDec 20 2012 )

Does this mean the judge is not going to rule on the supremacy issue, or will that be decided at a later time? I thought the only real fact being disputed was whether the State had jurisdiction to cite him in the first place since he did not deny his mining activities.

It sure is hard for my little pea-brain to understand all this legal stuff...

  
ratled
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Re: Validity of California's Dredging Moratorium Challenged in Criminal Court! ( 16:48:14 ThuDec 20 2012 )

On another board someone posted a cut n paste definition of a pre trail hearing. He did not post the reference link. Here are the key points I took away

"A pretrial conference may be conducted for several reasons: (1) expedite disposition of the case, (2) help the court establish managerial control over the case, (3) discourage wasteful pretrial activities, (4) improve the quality of the trial with thorough preparation, and (5) facilitate a settlement of the case"
"Under rule 17.1 of the Federal Rules of Criminal Procedure, pretrial conferences for criminal cases may be conducted to promote a fair and expeditious trial"

Most of the folks I have been chatting with believed that this would NOT be a slam dunk, you are absolutely right, day in court - although in my pea brain it should have been. This isn't a bad thing per se. From the above you can walk a way with all kinds of different scenarios and "WHIFFS' (What if said real fast). #5makes me nervous.

I'm not going to speculate what could/would/should/ will/ happen and just let it play out. I hope it goes fast as I don't wait too well.

ratled

The full description the above was taken from

Pretrial Conference
A meeting of the parties to an action and their attorneys held before the court prior to the commencement of actual courtroom proceedings.
A pretrial conference is a meeting of the parties to a case conducted prior to trial. The conference is held before the trial judge or a magistrate, a judicial officer who possesses fewer judicial powers than a judge. A pretrial conference may be held prior to trial in both civil and criminal cases. A pretrial conference may be requested by a party to a case, or it may be ordered by the court. Generally, the term pretrial conference is used interchangeably with the term pretrial hearing.
A pretrial conference may be conducted for several reasons: (1) expedite disposition of the case, (2) help the court establish managerial control over the case, (3) discourage wasteful pretrial activities, (4) improve the quality of the trial with thorough preparation, and (5) facilitate a settlement of the case.
Pretrial conferences are conducted in criminal cases to decide matters that do not inquire into the defendant's guilt or innocence. Under rule 17.1 of the Federal Rules of Criminal Procedure, pretrial conferences for criminal cases may be conducted to promote a fair and expeditious trial. In practice, federal and state courts use the pretrial conference in criminal cases to decide such preliminary matters as what evidence will be excluded from trial and what witnesses will be allowed to testify.
In a civil pretrial conference, the judge or magistrate, with the help of the attorneys, may (1) formulate and simplify the issues in the case, (2) eliminate frivolous claims or defenses, (3) obtain admissions of fact and documents to avoid unnecessary proof, (4) identify witnesses and documents, (5) make schedules for the submission of pretrial briefs and motions, (6) make rulings on motions submitted before the conference, (7) set dates for further conferences, (8) discuss the possibility of a settlement, and (9) discuss the consolidation or management of large, complex cases. After the conference, the judge or magistrate issues an order reflecting the results of the conference, and the order controls the future course of the case.
Generally, the substance of a pretrial conference for a criminal case is the same as that for a civil case. At the conference the judge or magistrate may make rulings on motions, eliminate repetitive evidence, and set schedules. If a preliminary issue arises after the pretrial conference, a party may request a special pretrial hearing with the court to address the issue. (This special hearing marks the distinction between pretrial hearing and pretrial conference, when such a distinction is made.) In the alternative, the parties may address such an issue in court on the first day of trial, out of the presence of the jury.
All cases are guided by procedural rules that allow parties to obtain relevant evidence from other parties. The process of turning over evidence is called discovery, and the rules that apply to obtaining evidence are called discovery rules. In civil cases, discovery refers to the right of either party to obtain evidence from the other, but in a criminal case, discovery generally refers to the right of the defendant's attorney to have access to information necessary to prepare a defense. Discovery issues are a common topic in pretrial conferences. Discovery orders that were issued prior to a pretrial conference may be reviewed for compliance at a pretrial conference, and new discovery orders may be issued after a pretrial conference.
Criminal defendants enjoy more procedural protections than do civil defendants, and the judge or magistrate must be careful to protect those rights. Generally, no criminal defendant who has requested assistance of counsel may be required to attend a pretrial conference without an attorney. No admissions made by the defendant or the defendant's lawyer during the conference may be used against the defendant in a trial unless the admissions are written and signed by the defendant and the defendant's attorney.
The judge or magistrate assigned to the case can choose to hold a pretrial conference, but the denial of a pretrial conference may be an unconstitutional denial of DUE PROCESS rights. For example, in a criminal case, a defendant has a due process right to a pretrial hearing when the defendant claims that a prosecutor has breached a plea agreement (United States v. Ataya, 864 F.2d 1324 [7th Cir. 1988]).
Criminal defendants must raise some issues before trial in a pretrial motion. Pretrial motions are specific requests for favorable orders from the court on particular issues. Under the Uniform Rules of Criminal Procedure, a set of model rules written by the American Law Institute and adopted by many jurisdictions, a defendant should lose the opportunity to raise the following issues if they are not raised prior to trial: defenses and objections based on defects in the indictment or formal charging instrument; requests regarding discovery, or disclosure of evidence; requests to suppress or exclude from trial potential testimony or other evidence; requests for severing the trial in cases involving codefendants; requests for the dismissal of the case; and requests for transfer of the case to another jurisdiction.
Similar requirements are imposed on prosecutors. The prosecution must tell the defendant prior to trial of its intention to use certain evidence, such as evidence obtained as a result of a search or seizure, wiretap, or other Electronic Surveillance mechanism; evidence culled from a confession, admission, or statement made by the defendant; and evidence relating to a lineup, show-up, picture, or voice identification of the defendant (Uniform Rules of Criminal Procedure 422(a)(1)).
Pretrial proceedings vary from jurisdiction to jurisdiction. In some jurisdictions courts have bifurcated the pretrial conference into dispositional conferences and trial management conferences. In St. Paul, Minnesota, for example, the district court schedules a trial management conference to discuss administrative aspects of the case, such as scheduling. The courts also schedule a dispositional conference in which the parties may discuss the possibility of a plea bargain or settlement. If no agreement between the parties is forthcoming at the dispositional conference, the case proceeds to trial, and the court schedules no further meetings between the parties until trial. The parties are, nonetheless, free to continue negotiating, and they also may request a special pretrial hearing if an issue arises after the conference but prior to trial.
The first pretrial conference in the United States was held in Michigan in 1929. Over the years, as courts became more crowded, the pretrial conference became more important. Pretrial conferences save valuable time for courts and jurors by narrowing the focus of the trial and resolving preliminary matters. They also assist the court in the fair and impartial administration of justice by facilitating discovery and reducing the element of surprise at trial. Pretrial conferences are so important in civil cases that a court may order litigants to appear at a pretrial conference and impose fines on them if they refuse to appear (G. Heileman Brewing Co. v. Joseph Oat Corp., 871 F.2d 648 [7th Cir. 1989]).
[2 edits; Last edit by ratled at 16:53:16 Thu Dec 20 2012]

  
Rod_Seiad
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Re: Validity of California's Dredging Moratorium Challenged in Criminal Court! ( 19:17:27 ThuDec 20 2012 )

Quote: JOE_S_INDY at 19:33:38 Sat Dec 15 2012

And now we hold our breath ....

Joe




Catch your breath Joe, we're on hold again.

  
UncleMark
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Re: Validity of California's Dredging Moratorium Challenged in Criminal Court! ( 19:50:52 ThuDec 20 2012 )

A pre-trial hearing happens before almost every trial, though it is not required.

Basically, a Judge or Magistrate holds the hearing. In a criminal case, discovery, schedules and clarification of facts that would be presented at trial are discussed.

A Defendant in a criminal case has to make certain inquiries during a pre-trial hearing or they loose the right to do so during the actual trial.

Because trials use large amounts of the States resources and the Judge's time, the Judge usually tries to get a sense of how the trial will come out and tries to get the parties to compromise along those lines, because most trials do go that way.



:confused:
[1 edits; Last edit by UncleMark at 19:56:08 Thu Dec 20 2012]

  
BNUGGET
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Re: Validity of California's Dredging Moratorium Challenged in Criminal Court! ( 18:01:07 SatDec 29 2012 )

Good morning everyone,

For those that don't know me my name is Brandon Rinehart, I'm A 32 yr old electrician, married, 2 kids, 5 mo old and 2.5 yr old. Been dredging for about 8 yrs. my father introduced me to gold panning when I was young and I've had the fever ever since. I finally convinced him we needed a dredge so we bought a 2" back packer. Then a 4" the next year. Got bored real fast with the 4" and wanted more so I bought a 6" and love it. I'm just doing what I love when I can .

This all started Fathers day weekend earlier this year when my father and I decided to do some mining on our claims. We found a deposit that extended under water and could only reach it with a dredge so we brought in the 4" and went to work aware of the moratorium but believed we had our federal rights and was willing to put myself at risk. About 3 hrs in DFG showed up cited me for dredging and consficated my dredge. Told me they had trail cams and were waiting for my return.

I hired James for his reputation and he came highly recommended. I want to thank all who have been helping me with this case and I know I'm not alone in this, support at the trial would be good I think. I myself am being educated along the way with this legal stuff and plan on riding this train all the way to the station.

Anything advice or info you have to offer would be helpful. This case could help all of us get back in the water sooner.

Brandon
[1 edits; Last edit by BNUGGET at 21:28:48 Fri Feb 15 2013]



---
"Turns out my wife's not the Gold Digger, I am...Go figure"
 
 
rlh1946
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Re: Validity of California's Dredging Moratorium Challenged in Criminal Court! ( 23:59:58 SatDec 29 2012 )

good luck Brandon, I wish you well.:doublethumbsup:



---
proud father of a Army Soldier
"PLP" member
"NRA" member
"UFC" fan
Why don't anti-gun people have stickers on their windows that say "This is a gun free home"
 
 
UncleMark
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Re: Validity of California's Dredging Moratorium Challenged in Criminal Court! ( 15:52:34 MonDec 31 2012 )

What river were you on?

  
BNUGGET
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Re: Validity of California's Dredging Moratorium Challenged in Criminal Court! ( 17:23:40 MonDec 31 2012 )


Quote: null

"what river were you on?"


Unclemark, I do not wish to publicly announce the location of my claims but I will say it was in the feather river canyon on one of its tributaries not the main branches.



---
"Turns out my wife's not the Gold Digger, I am...Go figure"
 
 
scooters
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Re: Validity of California's Dredging Moratorium Challenged in Criminal Court! ( 11:58:01 FriJan 4 2013 )

Brandon said,"Told me they had trail cams and were waiting for my return."

Trail Cams? I thought they used those things on tracking animals. :shrug:

  
salmonprospecting
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Re: Validity of California's Dredging Moratorium Challenged in Criminal Court! ( 16:46:01 FriJan 4 2013 )

Brandon....Big John B here...fellow tradesman owning my own painting business in So Cal...also paying off 90,acres on Salmon River...just wanted to Say Thank You for being a True Red Blooded American who is doing what many people are too scared to do...Stand uo for their rights against on overzealous, far too far reaching government that is stomping on all our rights more and more as time moves on.
At the risk of being extreme I vote a collapse would serve us 49ers and the country as a whole better for future generations to get back to the truth of government function...to protect us from foreign and domestic invasion...that's it...not setting up trailcams to harass the citizens of this dying Nation who are merely working hard as honest and straight a days work gets...gold prospecting to provide for your family.
Good luck Sir
Salmon Prospecting

  
BNUGGET
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Re: Validity of California's Dredging Moratorium Challenged in Criminal Court! ( 22:35:01 SunJan 27 2013 )

Hello Everyone,
Brandon R. here,

I just wanted to let everyone that was interested in attending my hearings in Quincy to know that we have postponed the Pre Trial Conference till after the San Bernadino hearings. The new date will now be on 2/20/13. I will post the time as soon as I know.

A pre- trial conference (pre-trial hearing) is a meeting held before a case goes to trial. All of the important team players such as the plaintiffs attorney, prosecution, defense attorney, judge or magistrate, are present. At this hearing the case is set into motion much like a play. The relevant facts along with any supporting evidence and documents are made known. Any concerns regarding the arrest, civil suit, claims, special requirements, time lines, objections, etc., are discussed and agreed upon or put to rest. The schedule is set and a judge enters all necessary requirements into a motion for all to follow during the course of a trial.

And not to distract from all the support needed for PLP and The New 49ers for all the other cases, but Western Mining Alliance(WMA)has agreed to help me in gaining awareness and bringing the miners together to fight as they always have.You can read about it in their January newsletter.

http://westernminingalliance.org/?page_id=570

Please help in anyway you can. Please spread the word to other miners as now is the time to get involved. I believe we have a real shot here! :thankyou:




---
"Turns out my wife's not the Gold Digger, I am...Go figure"
 
 
InspectorTom
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Re: Validity of California's Dredging Moratorium Challenged in Criminal Court! ( 03:17:52 TueJan 29 2013 )

Brandon,
Thank you for sticking up for your rights and in doing so sticking up for all of our rights.

Tom



---


 
 
advancedgeologic
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Re: Validity of California's Dredging Moratorium Challenged in Criminal Court! ( 23:23:55 TueFeb 19 2013 )

Thank you Brandon. My staff and I will be there to support you. Good luck!

Charlie



---
Carpe diem!
 
 

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