People v. Rinehart

Citation230 Cal.App.4th 419,178 Cal.Rptr.3d 550
Decision Date23 September 2014
Docket NumberC074662
PartiesThe PEOPLE, Plaintiff and Respondent, v. Brandon Lance RINEHART, Defendant and Appellant.
CourtCalifornia Court of Appeals

Murphy & Buchal, James L. Buchal for Defendant and Appellant.

Pacific Legal Foundation, Damien M. Schiff, Sacramento, and Jonathan Wood for Pacific Legal Foundation and The Western Mining Alliance as Amici Curiae on behalf of Defendant and Appellant.

Kamala D. Harris, Attorney General, Robert W. Byrne, Senior Assistant Attorney General, Gavin G. McCabe, Supervising Deputy Attorney General, Michael M. Edson, Marc N. Melnick and J. Kyle Nast, Deputy Attorneys General for Plaintiff and Respondent.

Center for Biological Diversity, Jonathan Evans, Studio City, and Saxton & Associates, Lynne R. Saxton for Karuk Tribe, Center for Biological Diversity, Friends of the River, Klamath Riverkeeper, Pacific Coast Federation of Fishermen's Associations, Institute for Fisheries Resources, California Sportfishing Protection Alliance, Foothill Angler's Coalition, North Fork American River Alliance, Upper American River Foundation, and Central Sierra Environmental Resource Center as Amici Curiae on behalf of Plaintiff and Respondent.

Opinion

HULL, Acting P.J.

In this case, we are asked to consider whether provisions of California Fish and Game Code sections 5653 and 5653.1 (unless otherwise stated, statutory references that follow are to the Fish and Game Code), as applied, are preempted by federal law because they “stand[ ] as an obstacle to the accomplishment [and execution] of the full purposes and objectives of Congress.” (California Coastal Commission et al. v. Granite Rock Co. (1987) 480 U.S. 572, 581, 107 S.Ct. 1419, 94 L.Ed.2d 577, 592 (Granite Rock ); Viva! Internat. Voice for Animals v. Adidas Promotional Retail Operations, Inc. (2007) 41 Cal.4th 929, 936, 63 Cal.Rptr.3d 50, 162 P.3d 569 (Viva! ).) On this record, we are unable to make that determination and we remand the matter to the trial court for further proceedings on the issue of federal preemption.

Facts And Proceedings

On August 30, 2012, the District Attorney of Plumas County filed a criminal complaint charging defendant with a violation of section 5653, subdivision (a) in that he used vacuum and suction dredge equipment in a river, stream, or lake without a permit (Count I) and with a violation of section 5653, subdivision (d) in that he possessed a vacuum and suction dredge within an area closed to the use of that equipment and within 100 yards of waters closed to the use of that equipment (Count II).

On October 30, 2012, defendant demurred to the complaint arguing that, in light of section 5653.1 as amended, the state has “indefinitely suspended the issuance of all permits for suction dredging, closing all waters of the state to” that use. On December 18, 2012, the trial court overruled the demurrer.

On May 15, 2013, defendant waived his right to a jury and agreed to a court trial regarding the violations with which he was charged. The parties stipulated to the following facts:

“1. On or about June 16, 2012 Defendant Brandon L. Rinehart did use vacuum and suction dredge equipment in the County of Plumas in a river or stream in the Plumas National Forest in an area closed to suction dredge mining by the State of California, and did not then possess a valid permit issued by the California Department of Fish and Wildlife, then known as the Department of Fish and Game, to use his vacuum and suction dredge equipment.

“2. On or about June 16, 2012 Defendant Brandon L. Rinehart did possess vacuum and suction dredge equipment in the County of Plumas in the Plumas National Forest, and within 100 yards of an area closed to suction dredge mining by the State of California.

“3. The conduct identified in Paragraphs 1 and 2 occurred within the boundaries of the ‘Nugget Alley’ placer mining claim owned by Defendant, and registered with the U.S. Bureau of Land Management [ (BLM) ] with Serial Number CAMC0297113.”

The court and the parties next turned to the defendant's assertion of the affirmative defense that section 5653 is unenforceable against him because the statute, as applied, is preempted by federal law.

Defendant made an offer of proof arguing that, if the evidence in the offer of proof was allowed to come before the court, it would establish that section 5653 was unenforceable under the circumstances presented here. The offer of proof was as follows:

1. Defendant would testify that he was working in the water within the boundaries of the “Nugget Alley” mining claim, one of two contiguous mining claims owned by he and his father and four other locators. He would testify that he and his father obtained the claims by making a discovery of a valuable locatable mineral, posting a Notice of Location on the claim as required by law, filing the Location Notice with Plumas County and then transmitting a copy of the file-stamped Location Notice to the U.S. Bureau of Land Management. He would offer as evidence a true copy of the Location Notice. He would testify that the Location Notice identifies, and establishes, upon acceptance by BLM, the boundaries of the claim. He would offer pictures of the claim, and areas where gold is to be found, together with a picture of substantial quantities of gold recovered from the claim.

2. Defendant would testify that BLM accepted the Location Notice and registered the Nugget Alley claim with Serial Number CAMC297113, and offer a true copy of a printout from the BLM LR2000 system, showing that this claim (and the adjacent claims) are in good standing with the United States, all required fees having been paid to all governmental entities. He would testify that the Nugget Alley Claim, though located on land which the federal government has legal title (within the Plumas National Forest), is private property on which he and the other owners pay real estate taxes to Plumas County, and offer a true copy of the most recent tax bill from Plumas County.

3. He would offer a map of the area and testify that at the time he was cited by the game warden, he was within the boundaries the claim.

4. Defendant would testify that placer claims, by their nature, contain gold deposited by water bodies. He would testify that much of California has already been subject to significant mining activity that has extracted the gold near to, but outside of, flowing waters, and that the Nugget Alley claim has been hydraulically mined in the past to remove such gold.

5. He would testify that he excavated test pits outside the water-covered areas of the claim to survey for the presence of recoverable gold and found no economically-significant quantity of gold outside the water-covered areas. He would testify that the gold remaining on the claim, and additional gold brought from upstream sources, has been concentrated by flowing waters and may be found beneath the waters of the claim.

6. He would testify that the only economically-feasible method by which gold can be extracted from the Nugget Alley claim, and indeed most placer claims in California, is by utilizing a suction dredge to extract the gold-bearing streambed material underwater. He would testify that based on a typical day of five hours/day in the water, he has recovered roughly one-half an ounce of gold per day, roughly $750, but on better days, he would recover an excess of an ounce, and that there is a continuing hope of hitting richer pockets which might lead to recoveries many times that amount.

7. Defendant would testify that he attempted to use hand shovels and buckets to shovel out gravel from under the flowing water, which would then be processed outside the water by another miner using a highbanker to recover the gold. He would testify that this process was very difficult to accomplish because, among other things, the flowing water blew most of the gravel off the shovel, and visibility in the hole he was working would diminish to the point where it became unsafe to work. He attempted one eight-hour day of this activity, laboriously filling 30 buckets of gravel, and this backbreaking labor produced less than a tenth of an ounce of gold.

8. He would testify that, by contrast, the suction dredge moves and processes the gravel simultaneously without having to lift it out of the water, which is a much faster process in addition to recovering a greater quantity of gold. By way of comparison, it takes two men eight hours each to recover one-tenth an ounce of gold or less by hand, while a single person working the suction dredge for five hours can recover half an ounce or more. For this reason, working by hand may be regarded as at least sixteen times less efficient than using the suction dredge.

9. Defendant would testify that the alternative of digging by hand underwater is not a commercially-viable alternative, insofar as the backbreaking labor cannot be sustained for extended periods and the economic return makes it unprofitable to pursue such an activity. For all these reasons, defendant would opine that the State's refusal to issue a permit to operate his suction dredge is in substance a prohibition on mining his claim, and certainly represents material interference with his mining activities.

10. Gerald Hobbs would offer evidence that he has been a miner and prospector for over thirty years, has mined extensively throughout the Western United States, and holds mining claims in California. He would testify that he has previously testified in litigation as an expert witness regarding suction dredge mining and evaluating stream deposits, and that he has previously taught suction dredge mining techniques and methods not only in California, but in other Western states and abroad.

11. He would testify that he is the President and Founder of Public Lands for the People, Inc. (PLP), a 501(c)(3) nonprofit educational organization of small and medium size miners and prospectors, with constituent members totally roughly 40,000 peop...

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1 cases
  • Bohmker v. State
    • United States
    • United States District Courts. 9th Circuit. United States District Court (Oregon)
    • 25 Marzo 2016
    ...in which a miner challenged a state law banning the use of suction dredge equipment on federal mining claims. People v. Rinehart , 230 Cal.App.4th 419, 178 Cal.Rptr.3d 550 (2014)reh'g denied (Oct. 10, 2014), review granted and opinion superseded , 182 Cal.Rptr.3d 275, 340 P.3d 1044 (Cal.201......

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