California politicians blunder PDF Print E-mail
Thursday, 08 October 2009

It is absolutely established that a valid unpatented placer mining claim is in fact a Statutory Federal Grant of “private property” derived from 30 U.S.C. § 21-54. All unpatented placer mining claims situated in California are on federally owned lands, under jurisdiction of the USFS, or BLM. Otherwise none would exist, as federal land is the only place an unpatented mining claim can be initiated, and held.

As long as the Federal government retains title, the federal interest in providing free access to its own land in order to promote mining is sufficient to preempt any state law that fundamentally bans such use. Thus under standard preemption analysis any state legislation, or regulation that conflicts with this overriding federal purpose, must fail.

Under the Supremacy Clause, any state law that conflicts with a federal law is preempted. Gibbons v. Ogden, 22 U.S. 1 (1824). Any state legislation which frustrates the full effectiveness of federal law is rendered invalid by the Supremacy Clause" regardless of the underlying purpose of its enactors, Perez v. Campbell, 402 U.S. 637, 651-52, 91 S.Ct. 1704, 29 L.Ed.2d 233 (1971)

A conflict exists if a party cannot comply with both state law and federal law. In addition, even in the absence of a direct conflict between state and federal law, a conflict exists if the state law is an obstacle to the accomplishment and execution of the full purposes and objectives of Congress. Crosby v. Nat’l Foreign Trade Council, 530 U.S. 363, 372-73 (2000).

In determining whether a state law is a sufficient obstacle, the courts examine the federal statute as a whole and identify its purpose and intended effects and then determine the impact of the challenged law on congressional intent. State law can be pre-empted in either of two general ways. If Congress evidences an intent to occupy a given field, any state law falling within that field is pre-empted.

If Congress has not entirely displaced state regulation over the matter in question, state law is still pre-empted to the extent it actually conflicts with federal law, that is, when it is impossible to comply with both state and federal law, or where the state law stands as an obstacle to the accomplishment of the full purposes and objectives of Congress. California Coastal Comm’n v. Granite Rock Co., 480 U.S. 572, 581 (1987)

An 1998 8th Circuit Court of Appeals case revolving around near identical prohibitions on unpatented mining claims, wherein holders brought suit claiming that federal mining laws preempted ordinance prohibiting issuance of any new or amended permits for surface metal mining within area which included federal lands. Private landowner intervened to defend the ordinance.

The United States District Court for the District of South Dakota, Richard H. Battey, Chief Judge, 977 F.Supp. 1396, granted summary judgment for plaintiffs and enjoined the ordinance. Intervener appealed.

The Court of Appeals, Hansen, Circuit Judge, held that: (1) preemption claim was ripe, and (2) Federal Mining Act preempted ordinance. Affirmed; South Dakota Mining Association Inc v. Lawrence County, 155 F.3d 1005

The only locatable mineral on the majority of unpatented placer claims held under federal law is placer gold. Which is naturally concentrated in stream or river bed gravels, and usualy no where else in worthwhile amounts. The only economically viable means to profitably recover placer gold in stream or river gravel is by “suction dredging”.

Accordingly, suction dredging is the “Highest & Best Use” of placer mining claims.
As a matter of fact, it is only viable use, as no other mining method is practical, economical, or profitable.

When the only viable use of an unpatented placer mining claim is by suction dredging, arbitrarily prohibiting that use (even temporarily) effects a complete “taking” of all economic benefit the owner could derive from it, for the duration of the ban.

The Fifth Amendment to the United States Constitution, made applicable to state and local governments by the Fourteenth Amendment, prohibits the government from taking private property for public use without just compensation.

The California Constitution provides, "Private property may be taken or damaged for public use only when just compensation ... has first been paid to, or into court for, the owner." (Cal. Const., art. I, § 19.)

It is well established that just compensation… is the full value of the property taken at the time of the taking, plus interest from the date of taking. United States v. Blankinship, 9 Cir., 1976, 543 F.2d 1272, 1275.

Without doubt, S.B. 670 capriciously deprives thousands of families of their legitimate livelihood, and caused an immediate gross compensatory “taking” of valid existing rights, and compensable private property interests of considerable magnitude.

Neither the USFS, or BLM will enforce this state law, given that that federal statutes, and regulations preempt this suction dredging ban on unpatented placer mining claims situated on federal lands under their control in California. That clearly should give public notice the federal courts will most certainly, and quickly take the same position the USFS/BLM has.

The Treasury of the State of California will ultimately be held liable to pay compensable damages to all those effected, accruing from August 6th 2009 forward. Until at least the illegal ban on suction dredging unpatented placer mining claims is lifted, or if necessary overturned by appropriate federal court action.

Plainly, Senator Wiggins who introduced this Bill, all the legislature that voted for it, and even the Governor failed to have S.B. 670 analyzed for critical federal preemption flaws, or significant “takings” liabilities it would create.

It would seen astute on the part of the California legislature to limit state financial liabilities here by swiftly correcting this law, to effect only a suction dredging ban on fee simple lands in California, which federal law may not preempt.

If not corrected quickly, state coffers will needlessly expend precious funds in paying attorney fees, and costs attempting to delay the inevitable overruling of S.B. 670 illegal provisions in federal court. Involved compensatory damages could well approach $20,000,000 annually. If ignored, those applicable damages will certainly compound over time with interest, costs and attorney fees applied.

California politicians should ponder that the 3,200 other current California suction dredge permit holders, and approximately 21,000 other similarly situated owners of unpatented placer mining claims on federal lands in California will justifiably require compensation for their loss’s S.B 670 directly caused them.

Once all affected are joined in a class action, which will most certainly prevail.
Who do these politicians think will be billed for that compensation?
Without question, it will most certainly be the treasury of the state of California. Huh_anim].gif


"Under the mining laws a person has a statutory right, consistent with Departmental regulations, to go upon the open (unappropriated and unreserved) Federal lands for the purpose of mineral prospecting, exploration, development, extraction and other uses reasonably incident thereto." (See 30 U.S.C. § 21-54, 43 C.F.R. § 3809.3-3, 0-6).

Federal mining claims are "private property" Freese v. United States, 639 F.2d 754, 757, 226 Ct.Cl. 252 cert. denied, 454 U.S. 827, 102 S.Ct. 119, 70 L.Ed.2d 103 (1981); Oil Shale Corp. v. Morton, 370 F.Supp. 108, 124 (D.Colo. 1973).

This possessory interest entitles the claimant to "the right to extract all minerals from the claim without paying royalties to the United States." Swanson v. Babbitt, 3 F.3d 1348, 1350 (9th Cir. 19930).

16 U.S.C. § 481, Use of Waters: All waters within boundaries of national forests may be used for domestic, mining, milling, or irrigation purposes under the laws of the state wherein such national forests are situated or under the laws of the United States and the rules and regulations established thereunder.

"Uncompensated divestment" of a valid unpatented mining claim would violate the Constitution. Freese v. United States, 639 F.2d 754, 757, 226 Ct.Cl. 252, cert. denied, 454 U.S. 827, 102 S.Ct. 119, 70 L.Ed. 2d 103 (1981).

Even though title to the fee estate remains in the United States, these unpatented mining claims are themselves property protected by the Fifth Amendment against uncompensated takings. See Best v. Humboldt Placer Mining Co., 371 U.S. 334 (1963); cf. Forbes v. Gracey, 94 U.S. 762, 766 (1876); U.S.C.A.Const. Amend. 5; North American Transportation & Trading Co. v. U.S., 1918, 53 Ct.Cl. 424, affirmed 40 S.Ct. 518, 253 U.S. 330; United States v. Locke, 471 U.S. 84, 107, 105 S.Ct. 1785, 1799, 85 L.Ed. 2d 64 (1985); Freese v. United States, 639 F.2d 754, 757, 226 Ct.Cl. 252, cert. denied, 454 U.S. 827, 102 S.Ct. 119, 70 L.Ed. 2d 103 (1981); Rybachek v. United States, 23 Cl.Ct. 222 (1991).

A valid location, though unpatented, is a grant in the nature of an estate in fee and if such an estate is taken by the United States, just compensation must be made. See U.S.C.A. Const. Amend. 5, North American Transportation & Trading Co. v. U.S., 1918, 53 Ct.Cl. 424, affirmed 40 S.Ct. 518, 253 U.S. 330

Such an interest may be asserted against the United States as well as against third parties (see Best v. Humboldt Placer Mining Co., 371 U.S. 334, 336 (1963); Gwillim v. Donnellan, 115 U.S. 45, 50 (1885)) and may not be taken from the claimant by the United States without due compensation. See United States v. North American Transportation & Trading Co., 253 U.S. 330 (1920); cf. Best v. Humboldt Placer Mining Co.

For further information on federal preemption law, the internet link below gives a basic explanation.


Last Updated ( Thursday, 08 October 2009 )
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