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FIRST AMENDED COMPLAINT - PART 1

FIRST AMENDED COMPLAINT
   
LAW OFFICES OF DAVID YOUNG
David Young, SBN 55341
11845 W. Olympic Boulevard, Suite 1110
Los Angeles, CA 90064
Telephone: (310) 575-0308
Facsimile No.: (310) 575-0311
Email: dyounglaw@verizon.net


Attorney for Plaintiffs






SUPERIOR COURT OF THE STATE OF CALIFORNIA


FOR THE COUNTY OF SAN BERNADINO





BEN KIMBLE, RONALD HANSEN, RON KLIEWER, ERIC RASBOLD, TERRY STAPP, DELORES STAPP, GARY GOLDBERG, GERALD HOBBS, PUBLIC LANDS FOR THE PEOPLE, INC. a 501 C-3 non-profit corporation, PATRICK KEENE, KEENE ENGINEERING COMPANY, INC., a California corporation, and WALT WEGNER. Plaintiffs, v. KAMALA HARRIS, Attorney General of the State of California; CHARLTON H. BONHAM, Director of the California Department of Fish and Game; CALIFORNIA DEPARTMENT OF FISH & GAME, and DOES 1-20, inclusive. Defendants ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) CASE NO. CIVDS1012922 PLAINTIFFS’ FIRST AMENDED COMPLAINT FOR FEDERAL PRE-EMPTION; VIOLATION OF: CAL. CONST. ARTICLE X, § 2; 16 U.S.C. § 481; 43 U.S.C. § 661; CALIFORNIA STATEHOOD ACT; DUE PROCESS; EQUAL PROTECTION; ENVIRONMENTAL JUSTICE; [GOV. CODE §6540.12] [PUB. RESOURCE CODE §71110-§71115]; INJUNCTIVE AND DECLARATORY RELIEF; DAMAGES. Unlimited Civil Case DEMAND FOR JURY TRIAL Judge: Hon. Donald Alvarez Department: S32


Plaintiffs Ben Kimble, Ronald Hansen, Ron Kliewer, Eric Rasbold, Terry Stapp, Delores Stapp, Gary Goldberg, Gerald Hobbs, Public Lands for the People, Inc., Patrick Keene, Keene Engineering Company, Inc., and Walt Wegner allege as follows:

INTRODUCTION

1. On or about August 6, 2009, the California State Senate passed and Governor Arnold Schwarzenegger signed Senate Bill 670 into law. (California Fish and Game Code §5653.1)

2. SB 670 prohibits vacuum and suction dredge mining, in the rivers, streams, and waterways of California, including waterways located on federal land. Pursuant to SB 670, the California Department of Fish and Game (the “DF&G”) is prohibited from issuing suction dredge permits to miners until the Director of the DF&G certifies to the Secretary of State that: 1) The DF&G has completed the environmental review of its existing vacuum or suction dredging regulations as ordered by the Court in Karuk Tribe of California et al. v. California Department of Fish and Game et al., Alameda County Superior Court Case No. RG 05211597 (The Court in the Karuk Tribe Case [Judge Bonnie Sabraw] did not close vacuum and suction dredge mining, or permitting pending the environmental review.); 2) DF&G has transmitted for filing with the Secretary of State, a certified copy of new regulations as necessary; and 3) the new regulations are operative.

3. On July 26, 2011 Governor Edmund G. Brown signed into effect AB 120, which amended newly enacted Fish and Game Code § 5653.1, imposing further stringent limitations on suction dredge mining in the waterways of the state of California. AB 120 extends the prohibition on suction dredge mining until June 30, 2016. In addition, AB 120 requires that “any new regulations fully mitigate all identified significant environmental impacts,” which the DF&G has stated is impossible for the Department to comply with; and further requires that “a fee structure is in place that will fully recover all costs to the Department related to the administration of the program.” This will require further legislative approval and enactment of the new fee structure, since DF&G cannot set or enact fees. The Governor will also have to approve the new fee structure, which is subject to his veto. The Department has further stated

that due to the enactment of AB 120, it will not be able to have either an EIR or propose final regulations prepared in 2011. SB 670, as amended by AB 120, is now set forth in the newly enacted California Fish and Game Code (“CF&GC”) § 5653.1.

4. AB 120 is a special attack on mining rights rather than any legislative regulation of the environment. §5653.1(c) specifically states:

“The Legislature finds and declares that this section, as added during the 2009-10 Regular Session, applies solely to vacuum and suction dredging activities conducted for instream mining purposes. This section does not expand or provide new authority for the department to close or regulate suction dredging conducted for regular maintenance of energy or water supply management infrastructure, flood control, or navigational purposes governed by other state or federal law.”

AB 120 amended seven (7) different codes within California state law, including the Fish and Game Code. Two (2) paragraphs in AB 120 referred to suction dredge mining and have substantial impacts on the process of the California DF&G (“Department”) to conduct environmental review and adopt amended regulations guiding suction dredge mining.

5. SB 670 and AB 120 affects primarily lower income citizens, the unemployed, and retirees who have to supplement their income by suction dredge mining. SB 670 and AB 120 stand in direct contradiction to California’s public policy of environmental justice as set forth in Government Code §65040.12(e), which states that: “For the purposes of this section, ‘environmental justice’ means the fair treatment of people of all races, cultures, and incomes with respect to the development, adoption, implementation, and enforcement of environmental laws, regulations, and policies.”

6. SB 670 and AB 120 have also set forth its public policy of environmental justice in Pub.Res.Code § 71110(a) and (b) which mandates that the California Environmental Protection Agency shall:

(a) Conduct its programs, policies, and activities that substantially affect human health or the environment in a manner that ensures the fair treatment of people of all races, cultures, and income levels, including minority populations and low-income populations of the state.

(b) Promote enforcement of all health and environmental statutes within its jurisdiction in a manner that ensures the fair treatment of people of all races, cultures, and income levels, including minority populations and low-income populations in the state.

7. DF&G had projected it would be adopting new regulations and certifying the Final Supplemental Environmental Impact Report by the end of summer 2011. DF&G claimed this would have permitted the sale of suction dredge permits under newly adopted regulations.

8. DF&G had publicly stated that AB 120 affects this effort in several important ways:

a. First, AB 120 establishes an end date for the current prohibition on suction dredge mining of June 30, 2016. The current prohibition on suction dredge mining was established by SB 670, and took effect on August 9, 2009 without any specific end date.

b. Second, AB 120 requires that any “new regulations fully mitigate all identified significant environmental impacts.” In the Draft Subsequent Environmental Impact Report (“SEIR”), the only significant environmental impacts are listed as significant but unavoidable. Unavoidable environmental impacts can never be fully mitigated. This is why DF&G has stated that it cannot comply with AB 120, because it is impossible for DF&G to comply with AB 120, since AB 120 requires the impossible. AB 120’s impossibility standard negates both SB 670 and the injunction issued by the Alameda County Superior Court.

c. As directed by the Alameda County Superior Court and SB 670, DF&G stated that it prepared the Draft SEIR to meet requirements of the California

Environmental Quality Act (“CEQA”), Pub. Res. Code 21000, et seq., which has no “fully mitigate” requirement or standard. “Fully mitigate” is not defined in any statute or regulation. Previously, the term has only been used in Fish and Game Code §2081, subdivision (b), the California Endangered Species Act. In addition to CEQA, AB 120 now requires DF&G to meet a “fully mitigate” standard in order that the prohibition on suction dredge mining end any earlier than June 30, 2016. However, since the “fully mitigate” standard cannot be enforced or implemented, though still in effect, DF&G will be unable to issue any regulations which would allow suction dredge mining to proceed, whether in 2016 or to the end of time.

d. Officials of DF&G have stated the statutory requirements of AB 120 that any “new regulations fully mitigate identified significant environmental impacts,” is impossible for the DF&G to comply with, and is therefore infeasible. For example, DF&G can never “fully mitigate” through regulations the listed significant and unavoidable environmental effects set forth in the Draft SEIR. See Santa Clarita Organization for Planning the Environment v. City of Santa Clarita (Henry Mayo Newhall Memorial Hospital)197 Cal. App. 4th 1042, (2nd App. Dist., Div. 2, 2011); See Also 2011 DJDAR 11239. Certified for publication. In addition, AB 120 is in conflict with CEQA, California Public Resources §21000.1 and 21002.1, allowing for the approval of projects with infeasible significant and unavoidable effects that are incapable of full mitigation.

e. Third, a new condition required by AB 120 is that a “fee structure is in place that will fully recover all costs to the department related to the administration of the program.” Under current law, however, the fee structure for DFG’s permitting program is prescribed by statute. Any change to that structure is beyond the authority of DFG and such change will require actions by the California Legislature and related approval by the Governor.

f. The Department has stated that because of the requirement of a legislatively inactive new fees structure, the new regulations and the resumption of suction dredge mining cannot take place. The department stated:

“Finally, the previous moratorium established by SB 670 was clear that DFG needed to take several actions (i.e. comply with CEQA and adopt amended regulations) which would then allow suction dredge mining to resume, under the new regulations. Said any other way, DFG had the final State approval to complete the process, subject only to the Alameda County Superior Court’s concurrence. AB 120 adds a legislative step, described in the previous paragraph. Simply put, the legislature will need to affirmatively approve a new fee structure, before suction dredge mining can resume under new regulations. The perspectives of legislators about sufficiency of a fee structure and suction dredge mining generally will affect the probability of such legislation being approved.”


This places the Department in violation of the Court Order of the Alameda County Superior Court, Case No RG 05211597, issued by Judge Sabraw.


9. Prohibiting suction dredge mining has devastated the miners, miner’s families, and communities that depended on such mining as an important source of income and economic security. The enactment of SB 670 and AB 120 violates rights granted to Plaintiffs under Federal mining law and the United States Constitution, and under California law and the California Constitution. In addition, SB 670 and AB 120 are pre-empted by federal mining law encouraging and authorizing mining on federal land. Among other matters, Plaintiffs seek injunctive and declaratory relief, including the invalidation of SB 670 and AB 120.

10. DF&G claims the right to regulate and require permits for suction dredge mining in all rivers, streams, and waterways in California, including those rivers, streams, and waterways on Federal lands. Such regulation must be reasonable and cannot prohibit what Federal Law grants.

PARTIES

11. Plaintiff Ben Kimble has engaged in vacuum and suction dredge mining for over twenty years. Mr. Kimble has a Federal mining claim on Federal land along the North Yuba River in California. Mr. Kimble had permits from DF&G which enabled him to engage in vacuum and suction dredge mining in California. Mr. Kimble has paid DF&G for these permits. These permits have been cancelled by DF&G pursuant to SB 670, as amended by AB 120. Mr. Kimble has spent substantial sums in order to engage in suction dredge mining. Mr. Kimble is directly and substantially harmed by the passage of SB 670 and AB 120 because he can no longer engage in suction dredge mining on his Federal mining claims on Federal land in California. Mr. Kimble is a resident of Riverside County, California.

12. Plaintiff Ronald Hansen has engaged in vacuum and suction dredge mining since 1980. Mr. Hansen has had permits from DF&G which enabled him to engage in vacuum and suction dredge mining on Federal mining claims on Federal land in California. Mr. Hansen had paid DF&G for these permits. Mr. Hansen has previously earned money because of his involvement with suction dredge mining operations in California. He wishes to engage in suction dredge mining on Federal lands in the immediate future as a means of supplementing his income in these hard and difficult economic times. Mr. Hansen is directly and substantially harmed by the passage of SB 670 and AB 120 because he can no longer engage in suction dredge mining on Federal land in California. Mr. Hansen is a resident of San Bernardino County, California.

13. Plaintiff Ron Kliewer has engaged in vacuum and suction dredge mining for approximately twenty years. Mr. Kliewer has engaged in vacuum and suction dredge mining in order to supplement his income. Mr. Kliewer had permits from DF&G to engage in vacuum and suction dredge mining in California. Mr. Kliewer has paid DF&G for these permits. These permits have been cancelled by DF&G pursuant to SB 670, as amended by AB 120. Mr. Kliewer has spent substantial sums in order to engage in suction dredge mining. Mr. Kliewer is directly and substantially harmed by the passage of SB 670 and AB 120 because he can no longer engage in suction dredge mining on his Federal mining claims on Federal land in

California. Mr. Kliewer was laid off from his job on July 23, 2010, and can no longer engage in suction dredge mining to supplement his income. Mr. Kliewer is a resident of San Bernardino County, California.

14. Plaintiff Eric Rasbold owns approximately 180 acres of Federal mining claims, located on Federal land along the Steeley Fork of the Cosumnes River in El Dorado County, California. He has engaged in suction dredge mining for over six years, and also operated a land lease for suction dredge miners who would come and work the land for a fee. He has spent approximately $10,000 on machinery directly related to suction dredge mining operations. Mr. Rasbold is directly and substantially harmed by the passage of SB 670 and AB 120 because he can no longer engage in suction dredge mining on his Federal mining claims on Federal land. Mr. Rasbold is a resident of El Dorado County, California.

15. Plaintiff Gerald Hobbs owns Federal mining claims on Federal land in California. Mr. Hobbs has mining claims and mineral estates in three (3) National Forests, all of which are in California. They are the Angeles National Forest, Tahoe National Forest, and Six Rivers National Forest. Mr. Hobbs has been a miner and prospector for over thirty years. Mr. Hobbs has permits from DF&G to engage in vacuum and suction dredge mining on his Federal mining claims on Federal land in California. Mr. Hobbs has paid DF&G for these permits. These permits have been cancelled by DF&G pursuant to SB 670, as amended by AB 120. Mr. Hobbs has spent substantial sums in order to engage in suction dredge mining on his Federal mining claims on Federal land in California. Mr. Hobbs earned income from suction dredge mining in California which was necessary to maintain his economic viability. Mr. Hobbs is directly and substantially harmed by the passage of SB 670 and AB 120 because he can no longer engage in suction dredge mining on his Federal mining claims on Federal land in California. Mr. Hobbs is also the President and founder of Public Lands for the People, Inc., a California 501 c-3 non-profit corporation that advocates for miners and prospectors. Mr. Hobbs is a resident of San Bernadino, California.

16. Mr. Hobbs also runs a gold prospecting store in San Bernardino, California, which has been in existence since August 1, 1978. The store sold suction dredges and dredge

accessories to miners which represented about 60% of the store’s income. The passage of SB 670 was a devastating economic blow to the store’s business income. The prior owners went out of business because of the passage of SB 670, and Mr. Hobbs took over the store in March, 2010, with the expectation of suction dredging again being permitted by the end of 2011. SB 670 and AB 120 have placed in question the economic viability of the store’s business, and the ability of the store to remain open under Mr. Hobbs.

17. Plaintiff Public Lands for the People, Inc. is a California 501 c-3 non-profit corporation (“PLP”). PLP is a nationwide organization of miners, who are mineral estate grantees, Federal mining claim owners, and prospectors. With its constituent members, PLP constitutes approximately 40,000 small to medium sized miners and prospectors. Its founder and President is Gerald Hobbs of San Bernardino County, San Bernadino, California, from where he leads PLP. PLP, has among its membership, miners and prospectors with Federal mining claims and estates in National Forests in California, Federal lands administered by the Bureau of Land Management in California, National Parks in California, and other Federal lands in California, and throughout the United States. Large numbers of the membership of PLP received yearly permits from DF&G to engage in vacuum or suction dredge mining on Federal lands in California, and did so engage in such mining in California. These PLP members are directly affected in their mining, prospecting and associated operations by the passage of SB 670 that prohibits the issuance of permits for vacuum and suction dredge mining, the passage of AB 120, and the cancellation by DF&G of permits already issued, for vacuum and suction dredge mining in California. These PLP members are directly and substantially financially harmed by the passage of SB 670 and AB 120.

18. Gary Goldberg is a miner and prospector, with mining claims on Federal lands in California, who resides in San Bernardino County. Mr. Goldberg is a disabled military veteran. He has engaged in suction dredge mining in order to supplement his V.A. disability pension, small retirement benefit from private industry, and support his family. Mr. Goldberg is currently self-employed, but in the current economic situation, he earns only about $12,000.00 per year.

Because of the passage of SB 670 and AB 120, and the prohibition on suction dredge mining, he is suffering severe economic harm.

19. Terry Stapp, a resident of San Bernardino County, is a 60% disabled Vietnam veteran who retired in 1991 after 25 years in the United States Air Force. Mr. Stapp is a suction dredge miner and has so mined on Federal land in the Downieville area in Sierra County, California for over 30 years. His mining claims and estates in Sierra Country are worthless without the ability to engage in suction dredge mining. The economic loss to Mr. Stapp and his wife, Delores (Dee), is devastating. Mr. Stapp supplemented his income by suction dredge mining while he was on active duty in the United States Air Force. Since Mr. Stapp retired from the Air Force, suction dredge mining in California is his sole source of income, other than his military retirement pension. Mr. Stapp is directly and substantially financially harmed by the passage of SB 670 and AB 120.

20. Delores (Dee) Stapp, a resident of San Bernardino County, is the wife of Terry Stapp. Mrs. Stapp has mining claims and estates on Federal land in California. Mrs. Stapp engages in suction dredge mining on her claims in California, and has permits from DF&G to engage in such mining. Mrs. Stapp has paid DF&G for these permits. Mrs. Stapp has spent substantial sums in order to engage in suction dredge mining. Mrs. Stapp supplements her and her husband’s income through suction dredge mining in California. Mrs. Stapp is directly and substantially financially harmed by the passage of SB 670 and AB 120.

21. Mrs. Stapp started a gold prospecting store in San Bernardino, California and ran it since August 1, 1978, until March 2010. Mrs. Stapp sold suction dredges and dredge accessories to miners which represented about 60% of the store’s income. The passage of SB 670 was a devastating economic blow to Mrs. Stapp’s business income. SB 670 placed in question the economic viability of Mrs. Stapp’s business, and the ability of her store to remain open. Because of the passage of SB 670 and the precipitance drop in business resulting from its passage, Mrs. Stapp was forced to sell her store to Mr. Hobbs in March, 2010. Mr. Hobbs bought the store in anticipation of suction dredge mining being allowed by the end of 2011. Because of the passage of SB 670 and the passage of AB 120, Mr. Hobbs is seriously contemplating closing the doors of

his business, since suction dredge mining constitutes such a huge part of the business, and an extensive and continuing loss by the business.

22. Mrs. Stapp sells the gold she and her husband obtain from suction dredge mining through the Internet throughout the United States and in foreign commerce. The inability to suction dredge mine has substantially impacted the Stapps’ financial and economic well-being, since the Internet sales of suction dredge mined gold amounts to many thousands of dollars per year, and is a necessity for the Stapps to financially survive.

23. Patrick Keene is part of a third generation family-owned business that has been serving the mining community in California, the United States, and throughout the world for the past 60 years. Mr. Keene is Secretary/Treasurer of Keene Engineering Co., Inc. (“Keene Engineering”) of Chatsworth, California in Los Angeles County. Keene Engineering is the largest supplier of small scale dredging and mining equipment in the world. The Company, as well as many other manufacturers, sells to small businesses and dealers who provide equipment to prospectors and miners throughout California and the United States. Many of the people who operate suction dredges come to visit California to dredge for gold and work their mining claims. While doing so, they support local businesses in the process of filling their other needs. Mr. Keene has been working for Keene Engineering for over 30 years. Mr. Keene and Keene Engineering are directly and substantially financially harmed by the passage of SB 670 and AB 120.

24. The economic impact of the prohibition of suction dredge mining in California is devastating to Keene Engineering. Since the majority of Keene Engineering’s business is in California, it seriously calls into question whether Keene Engineering, and many other small businesses who also sell prospecting and mining equipment or supplies, can economically survive. Much of Keene Engineering’s business relied on California suction dredge miners. The losses involved with Keene Engineering’s business is in the many millions of dollars.

25. Since the introduction of SB 670, suction dredge sales by Keene Engineering and its California dealers have stopped. The fear of this activity becoming illegal, and it being a misdemeanor, carrying up to $1,000.00 in fines, and/or six months in jail, has been devastating to

Keene Engineering’s business, as well as its dealers. The passage of AB 120 only exacerbates the harms caused by SB 670.

26. Forty percent of Keene Engineering’s business was based on equipment sold to small and medium scale suction dredge miners in California, and the people who travel from other states to suction dredge mine in the rivers and streams in California. Thousands of those people also enjoy associated tourism in California and supported local seasonal businesses. To date, Keene Engineering’s sales to its dealers has dropped by over 70%, and many of its dealers have gone out of business.

27. Most of Keene Engineering’s suppliers, who provided it with components to build suction dredges are profoundly impacted as well. These suppliers also have had a substantial drop in their business, and some have gone out of business. The passage of SB 670 has created a ripple effect on many other industries both in and out of the State of California adversely affecting interstate commerce. SB 670’s prohibition on vacuum and suction dredge mining has cost, or will cost, California economic damage in an amount of approximately 60-65 million dollars a year, and possibly much more. The passage of AB 120 only exacerbates the harms caused by SB 670.

28. SB 670 and the passage of AB 120 may well put Keene Engineering out of business. Keene Engineering’s primary function is manufacturing suction dredges. The sales of suction dredges have been drastically reduced. Since the passage of SB 670, so many California suction dredge miners have put their equipment on the market for sale, causing a glut of used suction dredge equipment, that the market for new suction dredges has been nearly destroyed. This includes the sale of new suction dredges and suction dredge mining equipment in states other then California. A number of Keene Engineering’s dealers have contacted the Company, and told Keene Engineering that they are closing their doors, since they cannot economically survive selling just non-motorized equipment such as sluice boxes and gold pans. Pioneer Mining Supplies, of Auburn California, Keene Engineering’s largest California dealer, has notified Keene Engineering that because of the vast loss of business engendered by SB 670,

Pioneer Mining was going out of business. The passage of AB 120 only exacerbates the harms caused by SB 670.

29. Mr. Keene is also a small scale independent miner who owns mining claims and estates throughout California. Mr. Keene’s mining claims are on Federal land in National Forests in California and on Bureau of Land Management land in California. Mr. Keene engages in vacuum and suction dredge mining in California, and had permits from DF&G allowing him to engage in such mining. Mr. Keene has paid DF&G for these permits. Mr. Keene has spent substantial sums in order to engage in suction dredge mining. By not being able to engage in suction dredge mining on Federal land in California, Mr. Keene, in his individual capacity, is directly and substantially financially harmed by the passage of SB 670 and AB 120, since his economic investments in his mining claims and in suction dredge mining equipment are now near worthless. Mr. Keene is a resident of Los Angeles County.

30. Plaintiff Walt Wegner owns approximately 60 acres of Federal mining claims, located on Federal land in California. He has engaged in suction dredge mining for twelve years. He has spent approximately $10,000 on equipment directly related to suction dredge mining operations. Mr. Wegner has supplemented his and his family’s income by being able to engage in suction dredge mining. After the passage of SB 670, Mr. Wegner sent a letter to the DF&G requesting return of the money he spent on his 2009 suction dredge mining permit from the California DF&G. The DF&G denied his request. In order to retrieve the money he spent for a suction dredge mining permit that was now useless, he sued for, won, and received a refund. Mr. Wegner is directly and substantially harmed by the passage of SB 670 and the passage of AB 120 because he can no longer engage in suction dredge mining on his Federal mining claims on Federal land. Mr. Wegner is a resident of Los Angeles County, California.

31. The suction dredge mining community supports many other businesses in gold bearing areas which are in danger of economic failure. Many jobs are being lost due to the loss of tourism that the passage of SB 670 has engendered. Many campgrounds are empty along rivers and mining areas across California. Many businesses are seasonal, including campgrounds, hotels, restaurants, service stations, and grocery stores. Many of these businesses

are located in severely, economically depressed areas. These business owners rely on small scale suction dredge miners, prospectors, and tourism in order to survive economically. Many of the suction dredge miners are from states other than California, requiring lodging at hotels, motels, campgrounds, and RV parks. Many of the counties in Northern California, in the gold bearing area, are economically depressed and having very hard economic times. SB 670 is adding to this economic suffering, eliminating jobs, and creating a loss of tax base for these areas and for the State of California. The passage of AB 120 only exacerbates the harms caused by SB 670.

32. A 1993 survey indicated that the average investment in suction dredge equipment was approximately $6,000.00; that suction dredgers spent about $6,250.00 on expenses per year, including groceries, restaurants, motels, camp fees and other living expenses. It is further calculated that an average of 35 days per year was spent on dredging, equaling about $179.00 expenditure per day per miner. In addition, suction dredgers spend about $3,000.00 on gas, oil, maintenance and repair. In 2011, the amount spent would be substantially higher. Californians, and people from other states, purchase special vehicles such as trucks, campers, trailers, quads, and recreational vehicles to prospect and mine for gold in California. The 1994 EIR indicated a total statewide economic impact of $200 million for each year that dredgers did not mine.

33. Since the passage of SB 670, and the passage of AB 120, many mining claims and mineral estates will lose considerable value because their claim owners cannot mine them effectively, and the counties where they are situated will be compelled to reassess the value of their claims. This will create a large loss to County and State tax basis, and will ultimately curtail governmental services.

34. Arnold Schwarzenegger, as governor of the State of California, signed SB 670 into law on August 6, 2009. He was the Chief Executive of the State of California, charged with enforcing the laws in this State, including SB 670. Edmund G. Brown signed AB 120 into law on July 26, 2011. He is the Chief Executive of the State of California, charged with enforcing the laws in this state, including SB 670 and AB 120. Neither Governor Schwarzenegger nor Governor Brown are being sued as parties to this litigation at this time.

35. Edmund G Brown was Attorney General of California when AB 670 was enacted. Defendant Kamala Harris, is the Attorney General for the state of California, and was Attorney General when AB 120 was enacted. This defendant is sued in her official capacity. The Office of Attorney General is established, organized, and authorized under and pursuant to the laws of California with the authority to sue and be sued in its own name. Defendant Kamala Harris, as Attorney General, is responsible to prosecute and enforce the laws of California, including the Senate Bill 670 and AB 120, and their prohibitions against vacuum and suction dredge mining.

36. Defendant Charlton H. Bonham is sued in his official capacity as the Director of the California DF&G. Defendant Bonham has supervisory powers over the California DF&G and its implementation and enforcement of SB 670 and AB 120.

37. The California DF&G is a department of the Executive Branch of the State of California, and among its other duties, is responsible for the issuing of permits for vacuum and suction dredge mining in the rivers, streams, lakes, and waterways within California, and has supervision over, and enforcement powers for, SB 670 and AB 120.

38. DOE Defendants 1 through 20 are unknown to Plaintiffs at this time, but each is to be identified in this case as a resident of the State of California and acting in all particulars material to this case in his or her official capacity and under color of state law. At All times herein, all named Defendants and Defendants Does 1 through 20, inclusive, and each of them, were the agents and employees of each of the remaining Defendants and were at all times acting within the purpose and scope of said agency and employment, and each Defendant ratified and approved the acts of its agent and of the other Defendants. Plaintiffs are informed and believe, and thereon allege, that each and every Defendant, including Does 1-20, conspired with each other to commit the wrongful acts set forth in this Complaint to the harm and detriment of Plaintiffs.

JURISDICTION AND VENUE

39. This Court his jurisdiction over this action pursuant to the California Constitution, Article VI, Section 10; and CCP §410.10.

40. Venue is proper in this Court because certain of the Plaintiffs and Defendants reside in or are situated in San Bernadino County.

FACTUAL ALLEGATIONS

41. This case presents a classic conflict between prospectors, miners who hold unpatented or patented mining claims and mineral estates on Federal lands pursuant to the mining laws of the United States, and the State of California. Until recently, under longstanding state and federal mining law, vacuum and suction dredge prospecting and mining was permitted on rivers, streams, and waterways in the State of California running through such Federal mining claims and estates, and unclaimed Federal lands open to prospecting and mining.

42. Prospecting, placer mining, suction dredge mining, and the mining of unpatented and patented mining claims, all of which are mining operations pursuant to the mining laws and the Code of Federal Regulations (“CFR”), and all of which have valid pre-existing rights pursuant to the mining laws and CFRs, are common in the State of California, and done in accordance with the rules and customs of miners. Suction dredge mining is the only reasonable, economical, and environmentally sound method of prospecting for and extracting precious metals from the rivers, streams, lakes, and waterways in California. SB 670 and AB 120 prevent not only the extracting of precious metals on a mining claim, but because of the prohibition on prospecting for precious metals with suction dredges in the waterways of California, from locating a mining claim containing precious metals.

43. The California DF&G issued permits for vacuum and suction dredge mining in the State of California, even when such mining occurs on Federal lands and is pursuant to the mining laws of the United States. California Fish and Game Code § 5653 et seq.; California Code of Regulations 14 CCR § 228. Waters within the boundaries of Federal lands, including National Forests, National Parks, and lands within the jurisdiction of the Bureau of Land Management (BLM), can be used for mining. 16 U.S.C. § 481.

44. In 2006, members of the Karuk Tribe and their legislative allies initiated AB 1032 (Wolk), which supposedly was meant to protect trout by prohibiting suction dredge gold mining in approximately sixty-eight rivers throughout California, including the Klamath, Scott, and

Salmon Rivers. The heart of AB 1032 was to prohibit suction dredge gold mining in sixty-eight rivers throughout California, including the Klamath, Scott, and Salmon Rivers, and their tributaries, until a CEQA environmental review was completed. AB 1032 was eventually passed and went to Governor Schwarzenegger for his signature. Governor Schwarzenegger vetoed AB 1032.

45. In his veto message, Governor Schwarzenegger stated:

“I am returning Assembly Bill 1032 without my signature. The purpose of this bill is to protect fish and wildlife from the potential deleterious effects of suction dredge mining. Although I appreciate the author’s intent and the need to protect our fish, wildlife, and water resources, this bill is unnecessary. Current law gives the Department of Fish and Game (Department) the necessary authority to protect fish and wildlife resources from suction dredge mining. It has promulgated regulations and issues permits for this activity. Permits for suction dredge mining must ensure that these operations are not deleterious to fish and allow the Department to specify the type and size of equipment to be used. In its regulations, the Department may also designate specific waters or areas that are closed to dredging. It is unclear why this bill specifically targets a number of specific waterways for closure or further restrictions. The listed waterways represent only a small fraction of the waters in our State where suction dredging is occurring. The benefit or protection from such a minor closure is negligible and supports the notion that scientific environmental review should precede such decisions.”


46. After Governor Schwarzenegger vetoed AB 1032, legislative allies of the Karuk Tribe then attempted to stop suction dredge mining in California by attaching a prohibition of such mining to the California state budget bill. Governor Schwarzenegger line-item vetoed that attempt.

47. After the attack on suction dredge mining via the state budget failed, the Karuk Tribe then petitioned the Department of Fish & Game to have suction dredge mining prohibited throughout California. DF&G rejected the Karuk Tribe’s petition.

48. On February 27, 2009, allies of the Karuk Tribe introduced SB 670 in the State Senate again seeking to prohibit all suction dredge mining in every river, stream, lake, and

waterway in California until a CEQA (Cal. Environmental Quality Act, Public Resources Code §21000 et seq.) review had been completed and new regulations were operative. The prohibition would take place whether or not there were Coho salmon, trout, minnows, or any fish whatsoever in any of the State’s waters. SB 670 was, in many respects, a replay of AB 1032.

49. SB 670 was aimed at suction dredge mining, and prohibited the issuance by DF&G of any new permits for suction dredge mining in California. In addition, SB 670 invalidated any prior permits issued by DF&G for suction dredge mining. SB 670 prohibited suction dredge mining in every river, stream, lake, and waterway throughout the State of California. SB 670 passed the legislature and was sent to Governor Schwarzenegger for his signature. Reversing his position where he vetoed AB 1032, and the attempt to prohibit suction dredge mining through a rider to the state budget, Governor Schwarzenegger signed SB 670 into law.

50. DF&G then sent letters to holders of permits validly issued prior to the passage of SB 670 telling them to cease and desist all suction dredge mining in California. DF&G then canceled valid previously issued permits, and will no longer issue permits for suction dredge mining. DF&G will not issue refunds for those who have purchased permits prior to the passage of SB 670, since SB 670 does not provide for any such refunds. DF&G in its aforesaid letters warned that “A violation of the ban on instream suction dredge mining is a misdemeanor, punishable by up to $1,000 in fines and six months in jail.” Miners are reluctant to engage in suction dredge mining fearful of having to pay fines and face a jail sentence.

51. SB 670 adds to the CF&GC §5653 a newly enacted Section 5653.1. Present law prohibits the use of any vacuum or suction dredge equipment by any person in any river, stream, or lake in California without a permit issued by DF&G. California Fish and Game Code § 5653. On average, DF&G has issued approximately 3,200 suction dredge mining permits to California residents every year for the last fifteen (15) years. It is estimated that suction dredge miners, resident and non-resident, spend approximately $60-65 million in the rural, poorer counties of California, on supplies, fuel, food, camping, equipment, hardware, lodging, goods and services. Any person required to possess a permit pursuant to Section 5653, shall present his or her dredging equipment for inspection upon request of a State or County Fish and Game Warden.

CF&GC § 5653.3. Under existing law, it is unlawful to possess a vacuum or suction dredge in areas, or in or within a hundred yards of waters that are closed to the use of vacuum or suction dredges. A violation of the permit requirement is a misdemeanor punishable by a fine of up to $1,000.00 and/or six months in jail. CF&GC § 5653 et seq.; 14 CCR § 228 et seq.

52. Existing law states that DF&G is to adopt regulations to implement certain of the vacuum and suction dredge equipment requirements, and authorizes the DF&G to issue regulations with respect to other requirements. Existing law states that the regulations are to be adopted in accordance with the requirements of CEQA. CF&GC § 5653.9.

53. CEQA requires a lead agency, as defined, to prepare, or cause to be prepared by contract, and certify the completion of, an environmental impact report on a “project”, as defined, that it proposes to carry out or approve, that may have a significant effect on the environment, or to adopt a negative declaration if it finds that the project will not have that effect. SB 670 newly declares that the issuance of permits to operate vacuum or suction dredge equipment is a “project” pursuant to CEQA. CF&GC § 5653.1(a).

54. The SB 670 exempts from its provisions, among other things, certain types of ministerial projects proposed to be carried out or approved by public agencies, and emergency repairs to public service facilities necessary to maintain service. CF&GC § 21080(b)(1); 14 CCR § 15060(c)(1).

55. After SB 670 designated the issuance of permits to operate vacuum or suction dredge equipment to be a “project” under CEQA, DF&G suspended the issuance of permits, including permits issued prior to the passage of SB 670, and any mining pursuant to such permit, until the DF&G has completed an environmental impact report for the “project” as ordered by the Court in Karuk Tribe et al. v. California Department of Fish and Game, et al., Alameda County Superior Court, Case No. RG 05211597. DF&G, again delaying the promulgation of regulations, had stated that it will not complete the Court ordered environmental review of its permitting program until, at the earliest, in November 2011. The practical effect was that no suction dredge mining could possibly occur until 2012, since the greater part of the suction dredge mining season, for the most part, would end in September 2011. There has already

occurred three postponements in completing the environmental review, and the promulgation of final regulations, and there is every likelihood that there will be further postponements. The passage of AB 120 only exacerbates the harm caused by SB 670.

56. SB 670 prohibits the use of any vacuum or suction dredge equipment in any river, stream, or lake, for in-stream mining purposes, until the director of DF&G certifies to the Secretary of State that: 1) The DF&G has completed the environmental review of its existing vacuum or suction dredging regulations as ordered by the Court; 2) DF&G has transmitted for filing with the Secretary of State, a certified copy of new regulations as necessary; and 3) the new regulations are operative. There is no time frame set for this cascade of contingencies, and there is no realistic expectation that they will ever be completed within the next decade, if then.

57. In trying to explain why the completion of the environmental impact report will take so long, DF&G has stated that:

“Q: When will the EIR be completed? DFG is preparing a Subsequent Environmental Impact Report (EIR) to conduct the court-ordered review. DFG estimates at this point that it will complete and certify the Subsequent EIR (and updates to the existing regulations, if necessary) after a series of public meetings and other opportunities for public comment and review by late summer 2011. The environmental review and regulation processes are governed by the California Environmental Quality Act and the Administrative Procedures Act, respectively. The time line is driven by the requirements of these laws.”


“Q: Why is this process going to take so long? DFG has already begun the environmental review necessary to analyze the current regulations; this was last done in 1994. The review process will be complex and lengthy given the statewide scope of the analysis and the time that has passed since the last review. In addition to the detailed written analysis prepared by DFG in coordination with the State Water Board, the review process will also include several opportunities for public involvement, both via public meetings and through solicitation of written comments and suggestions.”


58. Although the court-ordered review for the EIR is only for the Klamath, Scott, and Salmon Rivers, DF&G will conduct a statewide review for the EIR. DF&G has stated that:

“Based on the information DFG collected from interested parties, DFG informed the Alameda County Superior Court in early 2008 that DFG could not proceed with the court-ordered environmental review in reliance on an addendum to the 1994 EIR. DFG informed the court at the same time that more than minor additions or changes to the 1994 EIR would be necessary and that statewide issues would need to be addressed in a subsequent environmental document in order to fulfill DFG’s obligations under CEQA. As a result, DFG informed the Alameda County Superior Court that it intended to prepare a subsequent or supplemental environmental impact report that would be statewide in scope to comply with the December 2006 Court Order.”


59. On June 7, 2010, the DF&G announced that completion of the statewide review was delayed to at least July 31, 2011. This delay was then extended until November 2011, which had the practical effect of delaying most suction dredge mining until 2012, since the suction dredge mining season for the most part ends in September 2011. The delay is now open-end and there is no set date for when regulations will be promulgated, if ever.

60. SB 670 is declared to be an “urgency statute,” and without support of any credible evidence whatsoever, and without the completion of any environmental impact report, the legislature:

“. . . finds that suction or vacuum dredge mining results in various adverse environmental impacts to protected fish species, the water quality of this state, and the health of the people of this state, and, in order to protect the environment and the people of California pending the completion of a court-ordered environmental review by the Department of Fish and Game and the operation of new regulations, as necessary, it is necessary that this act take effect immediately.”


This is contrary to the findings of Judge Bonnie Sabraw in Karuk Tribe of California et al. v. California Department of Fish and Game et al., Alameda County Superior Court Case No. RG 05211597.

61. DF&G has stated that vacuum or suction dredge equipment lawfully placed in the waters of California prior to the passage of SB 670 must be immediately removed pursuant to CF&GC § 5563. No compensation is to be provided by the DF&G, SB 670, or AB 120, to any

mining claim owner, miner or prospector for the expense of purchasing such equipment, lawfully placing such equipment in the State’s waters, or having to remove such equipment from the waters. The passage of AB 120 only exacerbates the harm caused by SB 670.

62. For Plaintiffs, suction dredge prospecting and mining in the rivers, streams, and waterways of California is not recreational. It is an important economic endeavor that has a direct economic impact on family finances, business finances, and in these hard economic times, often is the difference between having to choose whether to put gas in the car, or buy food or medicine for the family. Suction dredge prospecting and mining is not merely a question of having “fun”. Prohibiting suction dredge mining to prospectors and miners, who are Federal mineral estate grantees, forces them to face serious economic hardship. With a perilous economy, being able to sell even an ounce of gold for over $1,800.00 makes a substantial difference as to the economic choices a family has regarding basic necessities.

63. Several counties in California, such as Siskiyou, Sierra and El Dorado, which depend on the income derived from suction dredge miners in their counties, have been economically hard hit by the total loss of such income. These counties have passed resolutions in opposition to, and/or protested the passage of, SB 670 and AB 120. The passage of AB 120 only exacerbates the harm caused by SB 670.

FIRST CAUSE OF ACTION
AGAINST ALL DEFENDANTS
(Federal Pre-Emption)

64. Plaintiffs incorporate by reference the allegations set forth in paragraphs 1 though 63.

65. The heaviest concentrations of placer gold and other valuable minerals on unpatented mining claims held under Federal law, and on unclaimed Federal lands open to mining, are in waterways where a natural concentration of gold and other valuable minerals are in the gravels and on or near the bedrock of the riverbed or streambed. The only viable, economic and environmentally sound manner to recover the placer gold under these conditions is through use of a suction dredge. Suction dredge mining is the highest and best use of these placer

mining claims. Miners and prospectors have a federally granted right to use such waters in order to develop their mining claims and mineral estates. 16 U.S.C. § 481 (Use of Waters). All state laws, or regulations, in conflict with this right, are void and of no effect. 43 CFR § 3809.3.

66. Miners and prospectors have a statutory right, not a mere privilege, to go upon open Federal public domain lands for mineral prospecting, exploration, and development. Administrators may not unreasonably restrict or prohibit, temporarily or permanently, the exercise of that right. The Federal Mining Law of 1872, as amended (30 U.S.C. § 22 et seq.), provides that all valuable mineral deposits in lands belonging to the United States shall be free and open to exploration and development. The Supremacy Clause of the United States Constitution, Article VI, Clause 2, further provides that “the laws of the United States . . . shall be the supreme law of the land . . . with anything in the laws of any state to the contrary notwithstanding”. Article IV, § 3, of the United States Constitution, provides that “Congress shall have the power to dispose of and make all needful rules and regulations respecting the territory or other property belonging to the United States.” The absolute prohibition of SB 670 and AB 120 of vacuum or suction dredge mining in the rivers, streams, lakes, and waterways for Federal mining claims within Federal lands in the State of California, directly conflicts with those Federal mining laws, and violates the Supremacy Clause and Article IV, § 3, of the United States Constitution.

67. Without limitation, such preemption is manifested in whole or in part by the following laws of the United States:

(a) The Mining Acts of 1866 (14 Stat. 251).

(b) The Federal Mining Law of 1872, as amended (30 U.S.C. § 22 et seq.);

(c) The Mining and Minerals Policy Act of 1970, 30 U.S.C. § 21a.;

(d) 16 U.S.C. § 481 (Use of Waters) ; 43 U.S.C. § 661 (Appropriation of waters on public lands)

(e) The Federal Land Policy and Management Act of 1976 (“FLPMA”) 43 U.S.C. § 1701 et seq., including without limitation §§ 1732(b);

(f) Multiple Surface Use Act, 30 U.S.C. §§ 612(b), 613, 615; and

(g) Numerous sections of the Code of Regulations (“CFR”), including without limitation,

36 CFR 228 et seq.; 43 CFR § 3800; 43 CFR § 3809.1 et seq.

68. Miners and prospectors have a federally granted right to use such waters in order to develop their Federal mining claims and mineral estates, as well as a right to use such waters pursuant to the California Constitution. 16 U.S.C. § 481 (Use of Waters). Miners and prospectors have a statutory right to go upon open Federal public domain lands for mineral prospecting, exploration, and development. The issuance of a permit for vacuum or suction dredge mining to a mining claim owner, miner and/or prospector on Federal lands by DF&G is a non-discretionary act, and not a discretionary act.

69. The mining laws, as set forth above, give to the miner and/or prospector an absolute and exclusive right to enter and use the Federal public lands, and the rivers, streams, lakes and waterways running therein, for the purpose of mining and developing his or her mineral estate. The Mining Act of 1866 states:

“That the mineral lands of the public domain, both surveyed and unsurveyed, are hereby declared to be free and open to exploration and occupation by all citizens of the United States, and those who have declared their intention to become citizens, subject to such regulations as may be prescribed by law, and subject also to the local custom or rules of miners in the several mining districts, so far as the same may not be in conflict with the laws of the United States.” (14 Stat 251)


70. The Federal Mining Law of 1872 states:


“Except as otherwise provided, all valuable mineral deposits in lands belonging to the United States, both surveyed and unsurveyed, shall be free and open to exploration and purchase, and the lands in which they are found to occupation and purchase, by citizens of the United States and those who have declared their intention to become such, under regulations prescribed by law, and according to the local customs or rules of miners in the several mining districts, so far as the same are applicable and not inconsistent with the laws of the United States.” (30 U.S.C. §22)

71. The Mining and Minerals Policy Act of 1970 states:

“The Congress declares that it is the continuing policy of the Federal Government in the national interest to foster and encourage private enterprise in (1) the development of economically sound and stable domestic mining, minerals, metal and mineral reclamation industries, (2) the orderly and economic development of domestic mineral recourses, reserves, and reclamation of metals and minerals to help assure satisfaction of industrial, security and environmental needs, (3) mining, mineral, and metallurgical research, including the use and recycling of scrap to promote the wise and efficient use of our natural and reclaimable mineral resources, and (4) the study and development of methods for the disposal, control, and reclamation of mineral waste products, and the reclamation of mined land, so as to lessen any adverse impact of mineral extraction and processing upon the physical environment that may result from mining or mineral activities.” (30 U.S.C. §21a)


72. The owner of Federal mineral rights is entitled to take from the land and use that amount of water which is reasonably necessary for the exploitation of the mineral rights. Russell v. Texas Co., 238 F. 2d 3.3 (9th Cir. 1956), cert. denied, 354 U.S. 938 (1957). In addition, “. . . so long as they comply with laws of the United States . . . [miners] shall have the exclusive right of possession and enjoyment of all the surface included within the lines of their locations”. 30 U.S.C. § 26. The waters included within the boundaries of a Federal mining claim constitute part of the surface of that claim.

73. SB 670 and AB 120 are prohibitory, not regulatory, in their fundamental character. It strikes at the central purpose and objectives of the applicable Federal laws regarding mining. Through SB 670 and AB 120, the State of California attempts to substitute its political judgment for that of Congress. The Federal government has authorized a specific use of Federal lands for mining, and California cannot prohibit that use either temporarily or permanently. Ventura County v. Gulf Oil Corp., 601 F.2d 1080, 1084 (9th Circ. 1979). A state cannot prohibit on Federal land those activities specifically permitted by the United States. Brubaker v. El Paso County, 652 P.2d 1050 (Colo. 1982). SB 670 and AB 120 are a de facto prohibition on all such suction dredge mining. Suction dredge mining is the only practical, economic, and environmentally sound method of extracting the gold from the waterways on Federal mining

claims. It makes mining Plaintiffs’ Federal mining claims commercially impracticable and worthless, and therefore is preempted by Federal Mining Law. California Coastal Commission v. Granite Rock Co., (1987) 480 U.S. 572, 587. South Dakota Mining Association v. Lawrence County, 155 F.3d 1005, 1011 (8th Cir.1998).

74. The United States Supreme Court has held that:

“States statutes in reference to mining rights upon the public domain must, therefore, be construed in subordination to the laws of Congress, as they are more in the nature of regulations under these laws than independent legislation.


State and territorial legislation, therefore, must be entirely consistent with the Federal laws, otherwise it is of no effect. The right to supplement Federal legislation, conceded to the state, may not be arbitrarily exercised; nor has the state the privilege of imposing conditions so onerous as to be repugnant to the liberal spirit of the congressional laws.” Butte County Water Co. v. Baker, 196 U.S. 119, 125, 49 L.Ed. 412, 25 S.Ct. 211 (1905)


75. To the extent DF&G may issue permits, plaintiffs are entitled to secure the necessary permits to conduct vacuum and suction dredge mining operations on Federal and non-Federal lands within the State of California pursuant to, and including without limitation, the above-stated statutes and regulations.

76. SB 670 and AB 120 interfer with the operation of a pervasive scheme of Federal laws and regulations, which are intended to, and does, preempt the operation, control, and regulation of mining on Federal lands by any State law or regulation. Any State law or regulation, which prohibits or interferes with, either permanently or temporarily, such mining on Federal lands is prohibited.

77. All matters dealt with by SB 670 and AB 120 are preempted and fully occupied by the laws of the United States, including without limitation, its mining laws, its environmental laws, its laws relating to clean water, 33 U.S.C. § 1151, et seq. (2004), and its laws relating to endangered species, 16 U.S.C. §§ 1531, et seq. (2004). SB 670 and AB 120 cannot prohibit, temporarily or permanently, what Federal mining law allows.

78. SB 670 and AB 120 stand as obstacles to the accomplishment of the full purposes and objectives of Congress in enacting not only the Federal mining laws but all other laws stated above. Plaintiffs are entitled under Federal law to secure the necessary permits to conduct vacuum and suction dredge mining operations on Federal lands within the State of California pursuant to, and including without limitation, the above-stated statutes and regulations, or for a declaration that such permits are not required from Federal mining claims on Federal lands.

WHEREFORE, Plaintiffs pray for relief as hereinafter set forth below:
SECOND CAUSE OF ACTION
AGAINST ALL DEFENDANTS
(Violation of Cal. Const. Article X, § 2)

79. Plaintiffs incorporate by reference the allegations set forth in the previous paragraphs 1 through 78.

80. The California State Constitution, Article X, § 2 guarantees that “the water resources of the State be put to beneficial use to the fullest extent of which they are capable, and that the conservation of such waters is to be exercised with a view to the reasonable and beneficial use thereof in the interest of the people and for the public welfare.” Use of water for mining is a beneficial use protected under the California State Constitution. 23 Cal.Code of Reg. §§ 659, 664.

81. The California Constitution Article X, § 2 further states that:

“[T]he right to water or the use or flow of water in and from any natural stream or watercourse in this State is and shall be limited to such water as shall be reasonably required for the beneficial use to be served . . . Riparian rights in a stream or watercourse attach to . . . for the purposes for which such lands are, or may be made adaptable in view of such reasonable and beneficial uses; provided, however, that nothing herein contained shall be construed as depriving any riparian owner of the reasonable use of water of the stream to which the owner’s land is riparian - - - or as depriving any appropriator of water to which the appropriator is lawfully entitled.”


82. Defendants, through the passage of SB 670 and AB 120, have deprived Plaintiffs of their rights under the California State Constitution to the beneficial and riparian use of California’s water resources. Plaintiffs are entitled to the reasonable and beneficial use of water for mining purposes. Accordingly, SB 670 and AB 120 are void and in violation of the California State Constitution.

WHEREFORE, Plaintiffs pray for relief as hereinafter set forth below:
THIRD CAUSE OF ACTION
AGAINST ALL DEFENDANTS
(Violation of 16 U.S.C. § 481; 43 U.S.C. § 661)

83. Plaintiff incorporate by reference all of the previous allegations set forth in the previous allegations set forth in paragraphs 1 through 82.

84. A Federal mining claim on Federal land gives to the holder of such claim a proprietary and possessory interest in the mineral estate associated with such claim. The claim holder, as the owner of the mineral estate has traditionally been held to have dominance over the surface estate. Waters in and upon the Federal mining claim constitute part of the surface estate. American Law of Mining, 2d Ed. § 200.02 [1].

85. The owner of the mineral estate and mineral rights is entitled to take and use from the land constituting his Federal mining claim that amount of water which is reasonably necessary for the exploitation of the mineral rights upon the aforesaid claim. Russell v. Texas Co., 238 F.2d 636 (9th Cir. 1956), cert. denied, 354 U.S. 938 (1957); Maley, Mineral Law, 6th Ed., p. 266.

86. 30 U.S.C § 26 states:

“The locators of all mining locations made on any mineral vein, load, or ledge, situated on the public domain, . . . shall have the exclusive right of possession and enjoyment of all the surface included within the lines of their locations . . .”


All waters within the boundaries of a mining claim constitute part of the surface of which a mineral estate holder has the exclusive right of appropriation and enjoyment.

87. 16 U.S.C. § 481 and 43 U.S.C. § 661 gives to the owners of Federal mining claims on Federal land the exclusive use, possession, and appropriation of the waters on their Federal mining claims in order to develop and utilize the full potential of their mineral estates.

88. Defendants, through the passage of SB 670 and AB 120, have deprived Plaintiffs of their rights to the use of water on their Federal mining claims pursuant to 16 U.S.C. § 481 and 43 U.S.C. § 661 in order to develop and utilize the full potential of their mineral estates. Plaintiffs are entitled to the reasonable and beneficial use of these waters for mining purposes pursuant to Federal law and statutes as set forth above. SB 670 and AB 120 are in conflict with and preempted by the aforesaid Federal laws and statutes. Accordingly, SB 670 and AB 120 are void and of no effect, and in violation of the aforesaid Federal laws and statutes.

WHEREFORE, Plaintiffs pray for relief as hereinafter set forth below:
FOURTH CAUSE OF ACTION
AGAINST ALL DEFENDANTS
(Violation of California Statehood Act)

89. Plaintiffs incorporate by reference the allegations set forth in the previous paragraphs 1 through 88.

90. Pursuant to § 3 of the Act for the Admission of California Into the Union, 31 Cong. Ch. 50, September 9, 1850, 9 Stat. 452, California is prohibited from interfering with the primary disposal of federal lands within its limits.

“Sec. 3. And be it further enacted, That the said State of California is admitted into the Union upon the express condition that the people of said State, through their legislature or otherwise, shall never interfere with the primary disposal of the public lands within its limits, and shall pass no law and do no act whereby the title of the United States to, and right to dispose of, the same shall be impaired or questioned...”


CONTINUED - PART 2

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