PEOPLE v. RINEHARTAppellant’s Letter BriefCal.February 17, 2016 S$ 222620 Murphy & Buchal LLP 3425 S.E. First Yamhill Street, Suite 100 Portland, Oregon 97214 James L. Buchal telephone: 503-227-1011 fax: 503-573-1939 SURRBIVE Co} 1@mbllp.com February 16, 2016 PEL ED BY FEDERAL EXPRESS FEB 1 7 2046 Supreme Court of California Frank A. Mecuire Clerk 350 McAllister Street Sn San Francisco, CA 94102-4797 Meputy Re: People v. Rinehart, No. S22220 & the Court’s Question: “Whateffect, if any, does Senate Bill No. 637 (2015-2016 Reg. Sess.) (Stats. 2015, ch. 680) have onthe issues in this case?” To the Honorable Justices ofthe CaliforniaSupreme Court: Werespond from twoperspectives: (1) the narrow perspective, in which the Bill is formally irrelevant to Mr. Rinehart’s conviction; and (2) the broader perspective, in which the bill may be viewed as part and parcelofthe Legislative Assembly’s ongoing unconstitutional interference with federal mining rights. On balance, SB 637 underscoresthe needforthis Court’s decision to dispel ongoing regulatory and judicial paralysis that cripples mining on federal landsin California. 1. The Narrow Perspective: How SB 637 Relates to Fish and Game Code § 5653. Strictly speaking, Senate Bill 637 has no effect whatsoever on Mr. Rinehart’s misdemeanorconviction. Mr. Rinehart was convicted in 2012 for violation of §§ 5653(a) and 5653(d) ofthe Fish and Game Code, forbidding the use ofa suction dredge withouta permit, and possession ofa dredge within 100 yards of closed waters. Other than renumbering § 5653(d) to § 5653(e), the 2015 passage of Senate Bill 637 did not make any changesto these statutes, prospectively or retrospectively. Mr. Rinehart challenges § 5653.1 ofthe Fish and Game Codeinsofar as it stopped the Department from issuing the required permit. SB 637 leaves § 5653.1 fully in place, including the portion pursuant to which the Department mustcertify that the new 2012 regulations “fully mitigate all identified significant environmental impacts”andthat“a fee structureis in place that will fully coverall costs to the department related to the administration ofthe program”. The Departmenthas yet to issue any suchcertifications, and continuesto claim onits website Page 2 thatit is “prohibited from issuing any permits for suction dredging in California”. February 16, 2016 1 Senate Bill 637 does contain,in § 4, provisions related to the foregoing certification requirements. It adds § 5653(d)(2), providing that the Department“may adjust the base fees for a permit describedin this subdivision to an amountsufficient to coverall reasonable costs ofthe departmentin regulating suction dredging activities.” However, as the Department noted in its Opening Brief,it already had such authority (Opening Brief at 8 n.4). It has yet to exercise any such authority, part and parcel of its ongoing refusal to exercise regulatory authority to allow permits. Section 4 of Senate Bill 637 also addresses (in a complex and confusing way) the question ofcertifying full mitigation ofall identified environmental impacts: “The Legislature also finds and declares that, except for water quality, after complying with the Governor's Executive Order B-10-11 regardingtribal consultation and additional consultation requirements pursuant to Chapter 532 ofthe Statutes of 2014, also known as AssemblyBill 52 (Gatto), the DepartmentofFish and Wildlife may determine, for purposes of Section 5653.1 ofthe Fish and Game Code,that significant environmental impacts to resources other than fish and wildlife resources caused by the use of vacuum orsuction dredge equipmentfor the extraction of minerals are fully mitigated if a regulation adopted by the departmentto implement and interpret Section 5653 ofthe Fish and Game Code requires compliance with other laws and provides,in part, that nothing in a permit or amended permit issued by the departmentrelieves the permittee of responsibility to comply with all applicable federal, state, or local laws or ordinances.” To understand theintent,it is important to note that the Legislature rejected an earlier iteration of this language,striking a former § 4(a) that would have simply declared: Except as provided by the changes madebythis act, the Legislaturefinds and declares that the regulationspromulgated by the Department ofFish and Wildlife in 2012 to implementandinterpret Sections 5653 and 5653.1 ofthe Fish and Game Code were consistent and in compliancewith the Fish and Game Code, the California Environmental Quality Act (Division 13 (commencing with Section 21000) ofthe Public Resources Code), and the Administrative Procedure Act (Chapter 3.5 (commencing with Section 11340) ofPart 1 ofDivision 3 of Title 2 ofthe Government Code). (9/4/15 Amended Assembly version ofthe Bill.) -Permits (accessed 2/3/16). Page 3 February 16, 2016 In short, the Legislature considered andrejected the option ofjettisoning a requirement for full mitigation ofthe so-called significant impactsrelated to birds, noise, cultural resources, and others. Instead, the Legislaturestill requires the Department to makethe “fully mitigate” certifications. Section 4 first imposes consultation requirements that may be unconstitutionally implementedto allow Native American Tribes to impose land use controls on federal land by agreement with lead agencies. (See AB 55, § 7.) It then providesthat the Department may find that that permittee compliance with other laws could fully mitigate so- called significant impacts “to resources other thanfish and wildlife resources’ (emphasis added). Hence the Department now emphasizes onits website that SB 637 “[cjonditions Department issuanceofpermits on regulations implementing the section that must ensure the use ofvacuum or suction dredge equipmentwill not cause any significant effects to fish and wildlife”.2 No such certifications have been issued, and the Department’s litigation position in this case is that it lacks powerto do so. (Opening Briefat 7.) In short, substantially the same “fully mitigate” barriers that madeit legally impossible for Rinehart to get a permit when he was cited remain today. This is not for want of effort by the mining community. In the wake ofthe Court ofAppeals decision below,a ruling was secured from the Coordination Judge (Jn re Suction Dredge Mining Cases, No. JCPSDS4720 (San Bernardino Cty.) finding the State’s refusal to issue permits unconstitutional, but the Court on July 8, 2015 denied any equitablerelief on the groundthat the risk ofimprisonment for mining without a permit did not constitute irreparable injury; an appeal to the Fourth District Court of Appeal was taken, followed by motions on August 5, 2015 for summary reversal, or to expedite, but no action was ever taken by the Fourth District, which is probably waiting for this Court. In Re Suction Dredge Mining Cases, No. E064087. The mining community also moved for summaryjudgmentbefore the Coordination Judge to removethecertification requirement from § 5653.1 by striking down AB 120 and SB 1018 for violation ofthe “‘single subject rule” in the Article IV, § 9 ofthe California Constitution. That would haveleft onlytheinitial iteration of § 5653.1 (SB 670), which did not require the certifications. On January 20, 2016, however, the Coordination Judge refused to rule on the motion,instead stayingall further proceedings until this Court rulesin this case on the unrelated federal preemption issue.? 2 Id. 3 The proceedings stayed included the miners’ fully-briefed CEQA and APAclaimsthat, amongother things, the so-called “significant environmental impacts” were arbitrary and capricious, not supported by substantial evidence, and the product ofwhat would be recognized in any other context as exaggeration or even fraud. With the passage of SB 637, the Karuk Tribe anditsallies dismissed all their claims in exchange for a $340,000 payment by the Department. (Cf Opening Brief at 33 n.16 (“issues are pendingintrial court’”)). : Page 4 February 16, 2016 2. The Broader Perspective: Expanding Prohibitions Heighten the Obstacles to Accomplishing the Full Purposes and Objectives of Federal Law Senate Bill 637’s most remarkable feature is the definitional section: “Forpurposesofthis section [5653] and Section 5653.1, the use ofvacuum orsuction dredge equipment, also known as suction dredging,is the use of a mechanized or motorized system for removingorassisting in the removalof, or the processing of, material from the bed, bank, or channelofa river, stream,or lake in order to recover minerals.” (SB 637, §§ 2 & 3 (emphasis added).) With this revision,it is now clear that the Legislative Assemblyis attempting to destroynotjust the environmentally-sound andpractical means of recovering underwater placer deposits with suction dredges, but also all motorized mining in the immediate vicinity of California’s rivers, streams and lakes. This expanded definition threatens to put an endto nearly all use ofmotorized methodsofprospecting and mining within 100 yards of every California waterway. Only "recreational prospecting such as gold panning"is to be permitted, effectively turning the clock back on mining technology to the time before California was even a State. It is hard to imagine a more perverse progression of “obstacle[s] to the accomplishmentofthe full purposes and objectives of Congress” (California Coastal Commission v. Granite Rock Co., 480 U.S. 572, 581 (1987)) than SB 670, AB 120, SB 1018, and now SB 637. The Congressional goal of“economically sound andstable domestic mining, minerals, metal and mineral reclamation industries”set forth in 30 U.S.C.§ 21a(1) cannotpossibly be achieved by outlawing the use ofequipment manufactured by an entire small-scale mining industry. A simple Google search identifies dozens ofmanufacturers ofthe equipment (typically small businesses), such as http://www.keeneeng.com,http://jogmining.com, www.hecklerfabrication.com, www.angusmackirk.com, www.dahlkedredge.com, www.goldcube.net. Thisis the fourth bill attacking small-scale prospecting and mining, while continuing to exempt “suction dredging conducted for regular maintenance of energy or water supply managementinfrastructure, flood control, or navigational purposes” (§ 5653.1(d)), along with all other motorized (non-mining) activities conducted in, on and around therivers of California. SB 637 confirmsthatthe state is not attempting any even-handed and reasonable environmental regulation offederal mining activities, but is attempting to destroy any andall modem placer mining near California rivers. Ironically, the expanded definition would,if SB 637 were applied in any fashion other than an invidious, discriminatory attack on miners such as Mr. Rinehart, immediately shut down mostofthe State’s sand, gravel and aggregate mineral industries upon which vital State infrastructure depends. Having defined the “use ofvacuum orsuction dredge” equipmentto includeall motorized equipmentandall mining near water bodies,the Bill then creates an entirely new regulatory system by adding § 13172.5 to the Water Code, empowering the Water Board to Page 5 February 16, 2016 “p|rohibit any particular use of, or methods of using, vacuum or suction dredge equipment,or any portion thereof, for the extraction ofminerals . . .”. Again one seesa sort ofinvidious discrimination against precisely that which Congress has sought to foster and encourage: the development, i.e., extraction, ofminerals. Many types ofmotorized equipment used in the processing ofmineral samples and small quantities of placer material manifestly have no water quality impactat all, such as battery-operated (dry) spiral concentrators. Nevertheless, we anticipate that the People will emphasize that SB 637is ostensibly aimedat the protection ofwater quality. Among other things, SB 637 prohibits the issuance ofany permits for the use ofvacuum or suction dredge equipmentunless and until the miner presents the Departmentwith either: “(A) A copy ofwaste discharge requirements or a waiver ofwaste discharge requirements issued by the State Water Resources Control Board or a regional water quality control board in accordance with Division 7 (commencing with Section 13000) ofthe Water Code”; or “(B) A copyofa certification issued by the State Water Resources Control Board or a regional water quality control board and a permit issued by the United States Army Corps ofEngineers in accordance with Sections 401 and 404 ofthe Federal Water Pollution Control Act (33 U.S.C.Secs. 1341 and 1344, respectively) to use vacuum or suction dredge equipment.” While issues concerning such water quality permitting are beyond the scopeofthis appeal, it is worth noting that the U.S. Army Corps ofEngineers has for decades issued national and regional permits for the discharge of dredged materials at the insignificantlevels involved in activities such as Rinehart’s, including such permits as the current NWP 19 (“Dredging ofno more than 25 cubic yards”) or NWP 44 (mining-related discharges of dredged materials affecting “not more than 300 linear feet of stream bed”).* Until 2000, the Corps issued general permits in California specific to suction dredging, which were approved by the State. All these permits were and are issued under § 404 ofthe federal Clean Water Act, 33 US.C. § 1344, which requires, pursuant to § 401, 33 U.S.C. § 1341, that the State certify that the permits are compliant with water quality standards. The State Water Board declined to issue a generalcertification ofthe general permits in 2012, and initial contacts with the Regional Water Boards suggests that the State Water Board, which engineered the “dredges are a mercury problem, not a mercury solution” schemediscussed in our Answering Briefto Amici Karuk Tribeetal. (at pp. 10-21), will cause the Regional Boards deny such certifications, leading to furtherlitigation. 4 This Court can take judicial notice of such permits, available for review on the U.S. Army CorpsofEngineers website at bttp://www.usace.army.mil/Portals/2/docs/civilworks/nwp/2012/NWP2012_ corrections 21-sep-2012.pdf. Page 6 February 16, 2016 It is impossible to overstress the degree to which the mercury issue was the product of irrationality that notrier of fact should accept. In a context where mercury levels in rivers with historic mercury deposits spike with every heavy flow event as the mercury moves downstream, modern small-scale mining (not using mercury in its processes) either provides a benefit by removing 98% ofthe mercury encountered,oris utterly insignificant. Asfar as the mining community is aware, neither the State Water Board nor any Regional Water Board has taken any action, as required by § 3 of SB 637 (new Water Code § 13172.5(c)(1),to “solicit stakeholder input by conducting public workshops” before adopting any waste discharge requirements or waivers ofwaste discharge requirements. The Water Board knowsthat the prior Corps general permit covering suction dredging (whichit certified) had expired in 2000,and took noaction for years. A Declarationfiled in the CoordinatedLitigation pending before the San Bernardino Court, dated April 30, 2013, from the lead managerfor the relevant permitting activities, reported that: e The Board has been studying the issue since 2007; e The Board provided the Department of Fish and Wildlife with $500,000 to analyze water-quality issues (funding the mercury broadside); e “... it would be infeasible for suction dredge miners to obtain individual permits”; “a general permit wouldlikely be the appropriate procedure”; e “It is anticipated that the process of drafting and adopting a general NPDES permit, along with the associated environmental review process pursuantto CEQAwould take at least two to three years”. It is now nearly three years later, and the Water Board, as far as the Miners can tell, has done nothing, part and parcelofthe State’s general willful refusal to regulate as a means of prohibiting. The reference to an “NPDES”permitreflects the Board’s attempt to invoke § 402 ofthe federal Clean Water Act, rather than the §§ 404/401 procedure previously used. Section 402 is much more complicated and was intended to coverlarge industrial producers discharging toxic wastes; it does not apply when the Corpshas jurisdiction over the “discharge of dredged materials”. See also 33 C.F.R. § 323.2(d) (definition of“discharge of dredged materials”). Forall these reasons, the mining community isstill working through the details of compliance with the water quality aspects of SB 637. However,in all probability the administrative agencies will continue to adoptthe pretense ofregulating while deferring forever any administrative action that could effectively issue any permits authorizing any motorized miningactivities whatsoever. Unless this Court providesdirectionto the State’s agencies establishing the right of California’s small-scale miners to operate on federal lands underafunctioning regulatory system,furtherlitigation is highly likely. Page 7 February 16, 2016 Conclusion Enough is enough. Reasonable environmental regulation doesnot include seriatim legislation designed to maintain year after year after year ofprohibition in the guise that someday, somehow,an actual regulatory system might be developed—including the sabotage of what has been developed(through AB 120 and SB 1018) in favorofstill further innovations (SB 637). All this legislation destroyed an effective and functioning permit system under which not so muchas singlefish or even fish egg in California was everhurt. No industry can reasonably be expected to survive such conduct, and Congress did not permit California arbitrarily to destroy what is perhapsthe oldest industry in California: small-scale mining onfederal lands. This Court can and should reverse Rinehart’s conviction, and declare that ifthe State of California wishes to cite miners on federal land for operating without a permit, it mustfirst have a reasonable, functional and non-prohibitive permitting system in place. That would finally give the State an incentive actually to exercise regulatory authority ol 4James L. Buchal Counsel for Defendant and Appellant Brandon Rinehart cc: Service List Page 8 February 16, 2016 CERTIFICATE OF COMPLIANCE Pursuantto rule 8.520(d) ofthe California Rules ofCourt, I hereby certify that this supplemental letter brief contains 2,765 words, including footnotes. In makingthis certification, I have relied on the word count ofthe computer program usedto prepare the Dated: February 16, 2016 LS a aOf Vy a Lt Jamés L. Buchal ounsel for Defendant and Appellant Brandon Rinehart brief. Page 9 February 16, 2016 DECLARATION OF SERVICE I, Carole A. Caldwell, hereby declare under penalty of perjury under the laws of the State of California that the following facts are true and correct: Lam a citizen ofthe United States, over the age of 18 years, and not a party to or interested in the within entitled cause. I am an employee ofMurphy & Buchal, LLP and my business address is 3425 SE Yamhill Street, Suite 100, Portland, Oregon 97214. On February 16, 2016, I served the following document: Appellant Brandon Rinehart’s Supplemental Letter Briefby transmitting a true copy by First Class mail on the parties listed below: Matthew K.Carr Deputy District Attorney Plumas County District Attorney’s Office c/o California District Attorneys Association 921 11Street, Suite 300 Sacramento, CA 95814 Clerk of the Court Plumas County Superior Court 520 Main Street, Room 104 Quincy, CA 95971 Clerk of the Court Court of Appealofthe State of California Third Appellate District 914 Capitol Mall, 4" Floor Sacramento, CA 95814 Lynne Saxton Saxton & Associates 912 Cole Street, Suite 140 San Francisco, CA 94117 Michael Lauffer State Water Resources Control Board P.O. Box 100 Sacramento, CA 95812-0100 Nathaniel H. Kane . Environmental Law Foundation 1736 Franklin St., 9" Fl. Oakland, CA 94612 Marc N. Melnick Deputy District Attorney Office of the Attorney General 1515 Clay Street, Suite 2000 Oakland, CA 94612 Jonathan Evans Center for Biological Diversity 351 California Street, Suite 600 San Francisco, CA 94104 Damien Schiff Jonathan Wood Pacific Legal Foundation 930 G Street Sacramento, CA 95814 Sean B. Hecht UCLASchool ofLaw 405 Hilgard Avenue Los Angeles, CA 90095 Mark Nechodom Department of Conservation 801 K.St., MS 24-01 Sacramento, CA 95814 John Mattox Department of Fish & Wildlife 1416 Ninth St., 12" FL Sacramento, CA 95814 Page 10 Aaron Avila Lane McFadden United States Departmentof Justice P.O. Box 7415, Ben Franklin Station Washington, DC 20044 Steven J. Lechner Jeffrey W. McCoy Mountain States Legal Foundation 2596 South Lewis Way Lakewood, CO 80227 John Leshy U.C. Hastings College of Law 200 McAllister Street San Francisco, CA 94102 February 16, 2016 Brook B. Bond L. Michael Bogert Parsons Behle & Latimer 800 W.Main Street, Suite 1300 Boise, ID 83702 Eric Biber U.C.Berkeley School of Law 689 SimonHall Berkeley, CA 94720 set sss Carole A. Caldwell Declarant