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BigAl



Joined: 21 May 2012
Posts: 46
Location: N San Juan, Ca

PostPosted: Tue May 29, 2012 8:56 pm    Post subject:  Reply with quote

From what I read in this case I posted above, the dredge ban by any state is illegal, as dredging is the cheapest most efficient way to mine the gold from a river.  See item 29 above, Big Al
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Woof!



Joined: 09 Jan 2012
Posts: 90
Location: Gold Trail

PostPosted: Fri Jun 01, 2012 8:52 am    Post subject: Reply with quote

Hi Big Al,

Welcome to the forum. Cole/Spearfish is a good case and as you can see from reading just the decision it follows a long line (150 years) of consistent decisions by the courts.

You need to see the differences in any case to understand how they could apply or not.

In Cole the ordinance prohibited all surface mining. The dredge ban only prohibits one method of mining.

In Cole there was no dispute about whether the claims in question were valuable mineral deposits.

The recent suits by PLP and 49ers claim there has been a "taking" of the claim holder's property. There are several major problems with this approach - all of which will lead to failure.

The Supreme Court has ruled that a property interest in a mineral claim does not accrue until the mineral claimant has proven a valid mineral deposit exists. Without a verifiable discovery the miner has no property interest and thus there is no "taking".

In a fatal and ignorant error neither the PLP nor the 49ers have any indication in their suits that the claims involved contain valid mineral discoveries. Without a valid and verifiable mineral discovery the claimants have only a possessory interest. Loss of that possessory interest does not arise to a "takings" in the eyes of the law.

Even if the PLP crosses their fingers and get an ignorant judge that rules for their takings plea dredging will not be resumed by the court.

The remedy for a takings "win" would be monetary compensation for the claimants loss - not a return to dredging. Proving that loss is even more difficult than you can imagine. The courts have consistently ruled that a partial taking of mineral extraction methods does not diminish the value of an in situ mineral deposit. If you do not have an ongoing, prudent and marketable mining in process with verifiable production and sales history your check will amount to $0.

The proper way to get a clear win on a case is to present the facts and the controlling law. Relying on a few lines of a previous case can lead to disaster. The opinion of a court on a single mineral estate case means nothing to the next court unless the issues are the same. See McClure for an example of stare decisis on a court. Same issue same circumstances.

In Cole the issue was the attempted prohibition on all mining in one area. In the dredging cases the issue will revolve around the use of one tool in one type of mining in an entire State for one specified period of time. Apples to Oranges.

There are some very well established principles stated in Cole. Find those principles used in a court decision with the same issues as the dredging cases and you need only visit the court once for a guaranteed win. Without a prior identical case to point the court to you would find your time much better spent presenting the facts and the law.

Just one man's opinion.

Woof!

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