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FIRST AMENDED COMPLAINT - PART 2

FIRST AMENDED COMPLAINT CONTINUED - PART 2

91. SB 670 and AB 120 directly violate Section 3 of the California Statehood Act, by prohibiting vacuum and suction dredge mining on Federal public lands. Federal lands are subject to the “sovereignty and jurisdiction” of the federal government. Donnelly v. United States (1913) 228 U.S. 243, 259. SB 670 and AB 120 directly interferes with and impairs the disposal of Federal property, i.e. Federal mining claims. In Judson v. Herrington (1945), 71 Cal.App.2d 565, 569, the court recognized that “t seems clear that an attempt by the California legislature to limit the right of a citizen, given by federal law to locate mineral claims on property which is part of the public domain of the United States cannot be upheld.” SB 670 and AB 120 inhibit, and in effect prohibit, the development and utilization of mineral claims on property which is part of the public domain of the United States. This affects and interferes with “the primary disposal of the public lands” within California, in that it makes the Federal grant of mining claims on Federal land worthless, making it impossible to mine the valuable minerals on those lands, the primary purpose for which the Federal Government disposed of the lands. Many of the mining claims disposed of by the Federal Government only have valuable minerals in the waterways. These minerals can only be mined economically and in an environmentally sound manner by suction dredge mining.
92. SB 670 and AB 120 bring into issue who has the final authority over the right to mine on Federal land, the United States or California. SB 670 and AB 120 make the granting of a Federal mining claim a hollow promise, interfering with the “primary disposal of the public lands” within California. It is an attempt by the legislature not to regulate within the boundaries of what the Congress condones, but to prohibit, temporarily or permanently, a form of mining authorized and regulated by the United States. As such, it infringes on the primary disposal of public lands, and violates the very act authorizing California’s entry into the Union.

WHEREFORE, Plaintiffs pray for relief as hereinafter set forth below:

FIFTH CAUSE OF ACTION
AGAINST ALL DEFENDANTS

(Denial of Due Process; U.S. Const. Amend 5 and 14 and Cal. Const. Article I, § 7(a))

93. Plaintiffs incorporate by reference the allegations set forth in the previous paragraphs 1 through 92.

94. Prior to the passage of SB 670 and AB 120, Plaintiffs invested many thousands of dollars in order to be able to engage in vacuum and suction dredge mining. Plaintiffs obtained Federal mining claims, invested substantial sums in those claims, kept those claims current, paid
taxes on those claims, bought and sold equipment, paid permit fees to DF&G, and otherwise spent substantial sums of money for the purpose of conducting mineral exploration and development pursuant to the laws of the United States and the State of California.

95. The due process clauses of the 5th and 14th Amendments to the United States Constitution, and Article I § 7(a) of the Constitution of California, prohibit the deprivation of property without due process of law. The Plaintiffs have constitutionally protected property rights and mineral estates that they own or lease in California. The passage of SB 670 and AB 120 make such property and mineral estates commercially worthless. The State of California, through and by the passage of SB 670 and AB 120, has wrongfully taken Plaintiffs’ property without compensation in violation of the Fifth and Fourteenth Amendments of the Constitution of the United States and Article I §§ 7(a) and 19 of the Constitution of California.

96. Defendants, through the passage of SB 670 and AB 120, have deprived the Plaintiffs of substantive due process under the 5th and 14th Amendments of the Constitution of the United States and Article I §§ 7(a) and 19 of the Constitution of California in at least the following ways:
a. Defendants’ deprivations of Plaintiffs’ property rights are arbitrary and capricious;
b. SB 670 and AB 120 have no rational relationship to any legitimate public purpose; rather it was motivated solely by the improper political purpose of totally prohibiting vacuum or suction dredge mining in the rivers, streams, lakes, and waterways of California;
c. SB 670 and AB 120 single out Plaintiffs for extraordinary treatment different from that accorded to all other potential mineral developers that utilize different methods of mining, or use suction dredge equipment for extensive non-mining purposes. These extensive non-mining purposes have the same effect as suction dredge mining for minerals, and in many cases, far exceed any disturbance to the rivers, streams, lakes, and waterways of California, and the biota therein, allegedly caused by suction dredge mining;
d. SB 670 and AB 120 are in direct conflict with the laws of the United States, which state that the mining of minerals on and within Federal lands is necessary for the economic development and security of the United States.
e. SB 670 and AB 120 are in direct conflict with the laws of the State of California, which assert that mining of minerals within the State is necessary for the economic development of the State and Nation;
f. SB 670 and AB 120 contain no standards to apply in that it affects every river, stream, lake, and waterway in California whether or not there are any fish, aquatic life, or biota therein, or any living organism that could possibly be affected in any way whatsoever by vacuum or suction dredge mining; and
g. SB 670 and AB 120 are in direct conflict with the encouragement of mining, including vacuum or suction dredge mining by and in the State of California, as being essential to the economic well-being of California, its people, and the needs of society. Thus, Defendants deprivation of Plaintiffs’ property is manifestly unfair, given that the Plaintiffs, with the State of California’s encouragement, have made a substantial investment for the exploration and development of minerals through vacuum and suction dredge mining.

WHEREFORE, Plaintiffs pray for relief as hereinafter set forth below:
SIXTH CAUSE OF ACTION
AGAINST ALL DEFENDANTS
(Denial of Equal Protection; U.S. Const. Amend 14; Cal. Const.
Article I, § 7(a))

97. Plaintiffs incorporate by reference the allegations set forth in the previous paragraphs 1 through 96.

98. The Plaintiffs are entitled to equal protection under the laws of California pursuant to the Fourteenth Amendment to the Constitution of the United States, and Article I § 7(a) of the Constitution of the State of California.

99. Defendants, through the passage of SB 670 and AB 120, specifically intended to deny, and have denied, Plaintiffs the same treatment, privileges, and immunities received by all other mine owners and operators, or potential mine owners or operators, that utilize methods other than vacuum or suction dredge mining; or users of vacuum and suction dredge equipment for purposes other than mining. This includes, without limitation, reclamation within the rivers, streams, lakes, and waterways of California by vacuum or suction dredges, which have the same effect on the rivers, streams, and waterways of California as suction dredge mining; said reclamation being just another form of mining.

100. There is no rational basis for this difference and treatment which has denied Plaintiffs’ equal protection under the laws and Constitutions of the United States and State of California as set forth above.

101. SB 670 and AB 120 affects primarily lower income citizens, the unemployed, and retirees who have to supplement their income by suction dredge mining. Without any rational basis, this discriminates on an economic ground against the most vulnerable and least able politically and economically to oppose such economic discrimination. It is a blatant violation of the Constitutions of the United States and the State of California, as set forth above, and denies them equal protection under the law.

WHEREFORE, Plaintiffs pray for relief as hereinafter set forth below:
SEVENTH CAUSE OF ACTION
AGAINST ALL DEFENDANTS
(Environmental Justice)

102. Plaintiffs incorporate by reference the allegations set forth in the previous paragraphs 1 through 101.

103. Suction dredge miners are primarily lower income citizens, the unemployed, and retirees who have to supplement their income through suction dredge mining. Many are economically among the most vulnerable and least able to defend themselves against economic discrimination. Government Code §65040.12(e) 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.”

104. Public Resources Code §71111 states that:
“On or before January 1, 2001, the California Environmental Protection Agency shall develop a model environmental justice mission statement for boards, departments, and offices within the agency. For purposes of this section, environmental justice has the same meaning as defined in subdivision (e) of Section 65040.12 of the Governmental Code.”

105. Pub. Res. Code §§71110(a) and (b) mandate that all environmental programs, policies, and standards be conducted in a manner that ensures the fair treatment of all people “and income levels… and low-income populations of the state.” These mandates are constitutionally based in both the Fourteenth Amendment to the Constitution of the United States and Article 1§ 7(a) of the Constitution of the State of California, guaranteeing equal protection under the laws.

106. SB 670 and AB 120 affects primarily lower income citizens, the unemployed, and retirees who have to supplement their income by suction dredge mining. Without any rational basis, this discriminates on an economic ground against the most vulnerable and least able politically and economically to oppose such economic discrimination. It is a blatant violation of the obligation of environmental justice, as set forth in Pub. Res. Code §§71110(a) and (b) and §71111, Government Code §65040.12(e), the Fourteenth Amendment to the Constitution of the United State, and Article 1 § 7(a) of the Constitution of the State of California, guaranteeing equal protection under the laws.

107. SB 670 and AB 120 are in direct conflict with, and contrary to, the intent of Government Code §65040.12(e); Pub. Res. Code §§71110(a) and (b); the Fourteenth Amendment to the Constitution of the United States, and Article 1§ 7(a) of the Constitution of the State of California. SB 670 and AB 120 are therefore void, unenforceable, and
unconstitutional, in that they deny environmental justice to Plaintiffs and all suction dredge miners.

WHEREFORE, Plaintiffs pray for relief as hereinafter set forth below:
EIGHTH CAUSE OF ACTION
AGAINST ALL DEFENDANTS
(Injunctive Relief)

108. Plaintiffs incorporate by reference the allegations set forth in the previous paragraphs 1 through 107.

109. Plaintiffs request injunctive relief, since the harm to them from the actions of the Defendants in enacting and implementing SB 670 and AB 120 prohibit them from prospecting and accessing their mining claims and mineral estates in the rivers, streams, lakes, and waterways in California within Federal lands. This causes damage to Plaintiffs which is immediate and irreparable, because they must be able to use vacuum and suction dredge methods of mining and prospecting in order to feasibly and economically prospect and mine on their mining claims and mineral estates. In addition, SB 670 and AB 120 cause Plaintiffs, as well as other California and non-California citizens, harm in in-state, interstate, and foreign commerce, as set forth above.

110. The actions of the Defendants as set forth above in closing and prohibiting vacuum and suction dredge mining, and prospecting and developing their mining claims and mineral estates, causes Plaintiffs irreparable harm and entitles them to immediate injunctive relief.

111. The Defendants’ actions in preparing, adopting and implementing the closure, prohibition, and other rules and policies that interfere with the Plaintiffs’ rights to prospect, and to mine and develop their mining claims and mineral estates as set forth above, are in derogation of Plaintiffs’ rights. Such actions by Defendants have caused, and will continue to cause, immediate, direct, adverse and irreversible harm to Plaintiffs and other miners and prospectors.

112. Plaintiffs are entitled to an immediate injunction, including, without limitation, a temporary restraining order, preliminary injunction, and permanent injunction, enjoining and restraining Defendants from the implementation and enforcement of SB 670 and AB 120, and
enjoining and restraining Defendants from interfering with Plaintiffs’ rights to prospect, to mine and develop their mining claims and mineral estates, as set forth above, through all lawful means, including, without limitation, motorized mining methods such as vacuum and suction dredging, or by other lawful means.

WHEREFORE, Plaintiffs pray for relief as hereinafter set forth below:
NINTH CAUSE OF ACTION
AGAINST ALL DEFENDANTS
(Declaratory Relief)

113. Plaintiffs incorporate by reference the allegations set forth in the previous paragraphs 1 through 112.

114. An actual controversy has arisen and now exists between Plaintiffs and Defendants regarding their respective rights and duties in that Plaintiff contends that SB 670 and AB 120 violate Plaintiff’s State and Federal rights under Federal and State law, including, without limitation, the California State and United States Constitutions, and is, including and without limitation, pre-empted by Federal law. Defendants dispute these contentions and contend that SB 670 and AB 120 are lawful and constitutional.

115. Plaintiffs desire a declaration as to the validity of SB 670 and AB 120 as described in this Complaint, both on their face and as applied to Plaintiffs’ prospecting and mining activities, whether prohibiting Plaintiffs’ prospecting and mining activities temporarily or permanently. Plaintiffs desire a declaration that SB 670 and AB 120, for the reasons set forth in this Complaint, are illegal, void, and of no effect. Unless the court issues an appropriate declaration of rights, the parties will not know whether SB 670 and AB 120 comply with Federal and State statutory and constitutional law, and there will continue to be disputes and controversy surrounding SB 670 and AB 120.

WHEREFORE, Plaintiffs pray for relief as hereinafter set forth below:
TENTH CAUSE OF ACTION
AGAINST ALL DEFENDANTS
(Damages)

116. Plaintiffs incorporate by reference the allegations set forth in the previous paragraphs 1 through 115.

117. As a direct and proximate result of the aforesaid violations by Defendants as set forth in Causes of Action I – VIII of this Complaint, Plaintiffs have suffered present and future damages in an amount not presently ascertainable, the exact amount to be proven at trial.

WHEREFORE, Plaintiffs pray for relief as hereinafter set forth below:
DEMAND FOR JURY TRIAL

1. Plaintiffs hereby demand a trial by jury.

PRAYER FOR RELIEF
WHEREFORE, Plaintiffs respectfully pray that this Court:

1. Adjudge and declare that the challenged prohibition and closure of the rivers, streams, lakes, and waterways in California as set forth in SB 670 and AB 120 (both now combined in CF&GC §5653.1) are unlawful pursuant to all the acts, laws, constitutions, and regulations stated in Causes of Action I –X of this Complaint. Further adjudge and declare that Defendants have acted beyond the scope of their legal authority in adopting those aforesaid actions, and that such actions, among other matters, violate the Constitution of the United States, and the State of California as set forth above, including without limitation, pre-emption pursuant to the laws of the United States, its mining laws, and all other laws and regulations as set forth above;
2. Enjoin and restrain Defendants, their agents, employees, successors, and all persons acting in concert or participating with them, from enforcing or implementing SB 670 and AB 120, CF&GC § 5653.1, and requiring others to enforce or implement SB 670 and AB 120, the aforesaid prohibition and closure and related rules, regulations, and polices; and issue a temporary, preliminary and/or permanent injunction against Defendants, and others, from enforcing or implementing SB 670 and AB 120, CF&GC § 5653.1.
3. Issue an order that Plaintiffs, and all other miners holding mining claims and mineral estates, have the right to use vacuum and suction dredge mining in order to prospect and mine on Federal lands and otherwise develop their Federal mining claims and mineral estates
4. Grant such damages as are proven at trial, with interest on the damages at the maximum annual rate as allowed by law, from such earliest date as allowed by law;
5. Award the Plaintiffs their reasonable attorneys fees and costs, including expert costs, and expenses of litigation as allowed by law, including, without limitation, and as applicable, California Code of Civil Procedure § 1021.5, the common fund doctrine, the Equal Access to Justice Act, 28 U.S.C. § 241 et. seq., 42 U.S.C. § 1988, and other applicable laws, concepts or doctrines, whether legal or equitable, rules of court, or other rules and regulations; and
6. Grant such other and further relief as the Court deems just and proper, including an award of attorney’s fees, costs, and expenses.


DATED: October 21, 2011 Respectfully Submitted,
______________________________
David Young
Attorney for Plaintiffs


PROOF OF SERVICE

I, the undersigned, declare that I am, and was at the time of service of the papers herein referred to, over the age of 18 years and not a party to the action. I am employed in the County of Los Angeles, State of California, in which county the within-mentioned mailing occurred. My business address is Law Offices of David Young, 11845 W. Olympic Boulevard, Suite 1110, Los Angeles, California 90064. I am familiar with the regular mail collection and processing practices of David Young for correspondence deposited for mailing with the United States Postal Service. I served the following document:

PLAINTIFFS’ FIRST AMENDED COMPLAINT

By placing a copy of the document in a separate envelope for the addressee named hereafter, addressed to such addressee as follows:

Marc N. Melnick, Esq.
Deputy Attorney General
1515 Clay Street, 20th Floor
P.O. Box 70550
Oakland, CA 94612-0550

I then sealed the envelope and mailed the foregoing to the addressee on October 24, 2011.

I declare under penalty of perjury under the laws of the State of California that the foregoing is true and correct.
Executed on October 24, 2011, at Los Angeles, California.
__________________________________
David Young
Woof!

I wish the best for Jerry and the PLP. We need organazations like this for those miners who have not yet grasped the power of the Mineral Estate Grant.

This suit has almost zero chance of success as it is written. There are many weak points for the opposition to pick apart and destroy. There are, once again, allegations of harm and damage with no attempt to present evidence of such. There are so many misstatements about mining as to make a knowledgeable miner cringe. Every legal theory in the book is presented with no facts on hand.

In short this is a lawyers dream. This baby could carry on for years with the lawyers arguing about every little unimportant point. Sounds like a new car and pool at the least.  Cool

Here is just one big blunder I caught, there are many more:

Quote:
it makes the Federal grant of mining claims on Federal land worthless, making it impossible to mine the valuable minerals on those lands, the primary purpose for which the Federal Government disposed of the lands. Many of the mining claims disposed of by the Federal Government only have valuable minerals in the waterways. These minerals can only be mined economically and in an environmentally sound manner by suction dredge mining.


Not only would it be easy to demonstrate that those claims are NOT worthless (claims are bought and sold all the time). I challenge anyone to produce a claim they can swear "only has gold in the waterway".

Miners have used many methods to recover gold before dredges were available. It was common to dam and divert waterways to work the gold concentrates at the bottom of those waterways. Various forms of dredges that do not use suction are still common.

Minerals can only be mined economically by suction dredge mining? Lets get real here folks it's obvious this crap was written by a lawyer and not a miner enjoying the Mineral Estate Grant. Minerals have been mined "economically" for thousands of years without suction dredges.

Why not rely on the Mineral Estate Grant alone? Because the Grant is specific to each "valuable mineral discovery". No class action, due process, administrative regulations or State's rights are involved in the Mineral Grant. Each claimant is on his own within his Grant. Other than the provision that miners district customs and practices are recognized in the Grant there is no recognition of a "class" of miners, nor is there a recognition of a right to associate in actions at law anywhere in the Grant.

To lean on those "benefits" of class action or administrative process one must step outside of the Grant - Bad Idea in my opinion. After all that is exactly what the State has been trying to force miners into for years - abandoning the Mineral Estate Grant in favor of the "benefit" of permits, regulations, NOI's and POO's. A world of asking permission to mine.

Exactly the same situation as the previous loss. Same lawyer, same arguments, same previously dismissed claims of harm. Heck even the same miners supporting it. Why would the results be different this time?

PLP as an organization has some fine goals. Jerry Hobbs is a nice man that has miners best interests at heart. The means and methods that are being used to reach those goals are ineffective at best. In my opinion it's time for PLP to either leave the miners to enforce their grant or join us in our right to claim and mine (not dispose and extract) our discovered valuable mineral deposits.

Not a single ticket has been issued. Isn't it time for Mineral Estate Grantees to get on with the business of mining? Are we so easily distracted that we would give up our right to the Grant so we could, once again, have the privilege of paying for a permit to do what we have an absolute right to do under the Mineral Estate Grant?

Woof!
1866

I agree with Woof. I don't think they have much chance considering the way this is written. In particular, I really dislike the references to "federal lands", "federal mining claims", as well as references to "waterways of California", because it implies state ownership of said waters. This list could go on and on.

That said, I do really wish them luck.

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