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Browsing the archives for the Lawsuits category.

Siskiyou County opposes claims of voter intimidation, asks court to drop lawsuit

Elections, Lawsuits, Sheriff Jon Lopey, Siskiyou County

PNP comment: Hum, if the sheriff and county clerk did not break any laws, how can there be a lawsuit? — Editor Liz Bowen

Oct. 21, 2016

Redding Record Searchlight

Siskiyou County is asking a Sacramento court to drop a lawsuit that alleged county officials were committing voter intimidation targeting the Hmong community.

In the past two weeks the county has asked the Eastern District Federal courts to dismiss the lawsuit, because there is no basis to the claim, according to a statement from the county’s legal representative.

The initial lawsuit alleged voter intimidation and marijuana cultivation enforcement activities by Siskiyou County officials that targeted the Hmong community.

Siskiyou County legal representative Jim Underwood said Sheriff Jon Lopey, County Clerk Colleen Setzer and other employees did not break any laws and as a result are asking the courts to drop the lawsuit.

The statement goes on to say that there is no basis of voter intimidation, because nine of the 10 plaintiffs in the lawsuit are registered to vote in Siskiyou County and seven of the plaintiffs voted in the June primaries.

A court hearing is scheduled for Nov. 1st in Sacramento.


In accordance with Title 17 U.S.C. section 107, any copyrighted material herein is distributed without profit or payment to those who have expressed a prior interest in receiving this information for non-profit research and educational purposes only. For more information go to: http://www.law.cornell.edu/uscode/17/107.shtml

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State owes Siskiyou sheriff an apology

Lawsuits, Sheriff Jon Lopey, Siskiyou County

PNP comment: Wow, quite the conciliatory apology by the Redding Record Searchlight. But, kudos to them for doing the right thing towards Siskiyou Sheriff Jon Lopey. Thank you to Alayna Shulman for digging deeper and truly investigating.

It needs to be remembered that these young Hmong are two and three generations past the Viet Nam era situation. I will alleged that a significant amount of several different foreign-type peoples are illegally growing commercial marijuana in Siskiyou County.

Unfortunately for the Hmong, their influx of visible numbers to Siskiyou the past two years is inescapable to notice — especially in gardening stores with carts packed to over-flowing with gardening supplies. And it was about 100 Hmong that attended standing-room only Siskiyou Co Board of Supervisors’ meetings to oppose the new stricter marijuana-growing ordinances. I was there. It was plain what their stance on the issue was.

Also providing false addresses for voter registration is considered fraud. Maybe Record Searchlight needs to look into that matter!

I allege it is a certain group of the Hmong and the ACLU who are the intimidators in this situation, including the threatened lawsuit. Media bias just fans the flames of true injustice! — Editor Liz Bowen

Redding Record Searchlight

Oct. 14, 2016

What happened in Siskiyou County last June after the local elections official raised questions about the voter eligibility of hundreds of Hmong residents would “take a few beers” to explain, as a Secretary of State investigator told an associate in an email obtained by the Record Searchlight.

It wasn’t that complicated to the Hmong residents the state’s investigators located and interviewed. They felt “terrified” and afraid to vote, they’ve since alleged in a federal lawsuit.

And it was very simple to Sheriff Jon Lopey, whose deputies accompanied the state investigators on their rounds. He was asked to provide navigation and protection and then left to twist in the wind, caricatured coast-to-coast as a redneck, racially biased lawman who allegedly hatched the idea of confronting frightened immigrants with automatic weapons and body armor. The state ignored and refused his pleas to acknowledge its role, records show.

At the time, this page piled on in that rush to judgment. We regret doing so.

That said, we don’t claim to know whether the deputies contributed to the situation by overstepping their bounds, as the lawsuit claims. But in two recent in-depth reports based on extensive interviews and reviews of public records, reporter Alayna Shulman clarified the sequence of events. In so doing, she uncovered a much greater role by Secretary of State Alex Padilla’s office.

A week ago, due to her reporting, a spokesman there finally acknowledged that his colleagues had, indeed, asked for support.

The case began when Colleen Setzer, Siskiyou County’s elected clerk since 1999, flagged what she thought to be a suspicious batch of voter applications from rural parcels that did not have street addresses. She forwarded her concerns to the Padilla’s office.

The Secretary of State investigators don’t carry guns, and according to the office’s spokesman they occasionally ask for protection from the local law officers who do. That’s what we finally know happened in this case.

All this went down just days before the June primary election. Among the issues facing voters was a get-tough ordinance on marijuana cultivation. That would be of particular interest to the newly arrived landowners from the Hmong community, Lopey alleged, because illegal growing activity was prevalent in the rural areas where they’ve settled.

In fact, it was the presence of those illegal grows that both local and state authorities say prompted the need for guns.

Problems arose when, over the course of a couple of days, the investigators and their armed protectors managed to find about a dozen people — all members of the Hmong community that has bought property within the past year — and interview them. Ten of these would-be voters say in their federal lawsuit the conversations led them to fear they’d be jailed if they attempted to vote.

These are very serious allegations. The right to vote is fundamental, and the full force of our government at every level should be applied to ensure every eligible citizen can do so.

It’s particularly poignant in this case, because Hmong immigrants paid such a high price for standing with Americans during the Vietnam War. During the war, their casualty rate was far higher than the Americans’, and after it was over they faced massacre, starvation, forced relocation and “seminar camps.” Those who eventually made it to the United States had endured untold horror and deprivation.

In Laos before the war, the Hmong maintained a distinct ethnic identity as highland farmers. The interest in Siskiyou County, attorneys for the Hmong plaintiffs have said, is not just opportunistic. To them, the high, fertile ground feels like home.

Still, marijuana has driven an early wedge between the newcomers and their long-established neighbors. And that makes this story more complex than the one that was first told.

During a long career in the military and law enforcement, Lopey has actually spent a couple of years specializing in Southeast Asian issues. Contrary to the “country rube” narrative, he understands very well what happened in Laos during the Vietnam conflict.

If anything can be said of him, it’s that he’s zealous in policing a plant that voters statewide may be about to legalize for recreational use. But that’s a philosophical position, not a racial one.

Even with the benefit of hindsight, it’s hard to properly judge the actions of last June. The federal courts will need to do that. The county is preparing its response now. A Secretary of State investigator also is named.

What we can say with certainty is it’s important to protect the integrity of the vote both from potential fraud and from intimidation.

Regardless of exactly how those interests were balanced in Siskiyou County, Padilla’s office behaved shamefully afterward by abandoning Lopey.

The Secretary of State owes more than a grudging and belated acknowledgment of his people’s role. He owes the sheriff an apology. And if he truly believes Hmong residents were intimidated, he owes them an apology, too.


In accordance with Title 17 U.S.C. section 107, any copyrighted material herein is distributed without profit or payment to those who have expressed a prior interest in receiving this information for non-profit research and educational purposes only. For more information go to: http://www.law.cornell.edu/uscode/17/107.shtml



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Ruling sets up big timber lawsuit by counties against Oregon

Bureau of Land Management, Federal gov & land grabs, Forestry & USFS, Lawsuits

Medford Mail Tribune


Posted Oct 7, 2016 at 5:49 PM Updated Oct 7, 2016 at 5:49 PM

By The Associated Press

PORTLAND — A Linn County Circuit Court judge’s ruling clears the way for 15 Oregon counties, including four in Southern Oregon, and dozens of taxing districts to move ahead with a class-action lawsuit seeking $1.4 billion over logging harvests on state-managed lands.

The Oregonian/OregonLive reports that Judge Daniel Murphy’s decision certifying a class consisting of the counties and some 130 districts means a lawsuit filed in March can proceed to trial early next year.

The suit alleges the state has for decades placed conservation goals ahead of sustainable harvest levels on state-managed timberlands. The counties allege that the state’s own figures show they have been deprived of at least $1.4 billion needed to fund basic services.

The counties and taxing districts involved all rely on logging money derived from harvests on state lands.

“The counties are not getting the benefit of the bargain made back in the 1930s and 1940s, when we entered into agreements with the state to manage these lands in a way that would produce the greatest permanent value,” Linn County Commissioner Roger Nyquist said. “This tug-of-war has been going on for more than 15 years and lands us in the spot we’re in today.”

The counties and taxing districts involved all rely on logging money derived from harvests on state lands. They can opt out of the lawsuit if they choose, Nyquist said, but the “vast majority” are expected to support the action.

A spokeswoman for Gov. Kate Brown referred questions about the case to the Oregon Department of Justice. A DOJ spokeswoman said it is not the department’s policy to comment on pending litigation.

A win by the counties will not translate to massive clearcuts on the more than 823,500 acres of timberlands managed by the Oregon Department of Forestry, Nyquist said.

“They don’t have to clearcut anything to properly manage their forests,” he said. “Everyone who owns a pair of hiking boots need not worry that we are going to destroy their resource.”

Besides Linn County, the counties affected by the lawsuit include Benton, Clackamas, Clatsop, Columbia, Coos, Douglas, Josephine, Klamath, Lane, Lincoln, Marion, Polk, Tillamook and Washington.

In accordance with Title 17 U.S.C. section 107, any copyrighted material herein is distributed without profit or payment to those who have expressed a prior interest in receiving this information for non-profit research and educational purposes only. For more information go to: http://www.law.cornell.edu/uscode/17/107.shtml

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Water contractors sue federal government for $350 million

Agriculture - California, Lawsuits, Liberty, Water rights, Water, Resources & Quality

By The Associated Press

FRESNO, Calif. (AP) – Seventeen California water districts have filed a lawsuit for $350 million against the federal government for not delivering water to contractors in the drought year of 2014.

The Fresno Bee reports (http://bit.ly/2dUTACL ) that the districts in the San Joaquin Valley and the city of Fresno filed the suit Wednesday in the U.S. Court of Federal Claims in Washington, D.C.

Attorney Craig Parton, who is representing the contractors, says the claim seeks to recover the fair market value of Friant Division water not delivered to the contractors even though there were sufficient supplies in Millerton Lake that year.

The lawsuit says farmers lost crops due to lack of water and had to remove orchards, deplete groundwater supplies and take emergency measures.

Attempts to reach the Bureau of Reclamation, which controls Millerton Lake and Friant Dam, were unsuccessful.


Information from: The Fresno Bee, http://www.fresnobee.com


In accordance with Title 17 U.S.C. section 107, any copyrighted material herein is distributed without profit or payment to those who have expressed a prior interest in receiving this information for non-profit research and educational purposes only. For more information go to: http://www.law.cornell.edu/uscode/17/107.shtml

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Records: State agency sought to obscure role in ‘intimidation’ case

Elections, Lawsuits, Sheriff Jon Lopey, Siskiyou County, Siskiyou Sheriff's report, State gov

PNP comment: For those not living in Siskiyou County or not paying attention, the growth of the commercial marijuana plantations has gone from 450, of 100 plants or more, in 2015, to an estimated 1,000 to 2,000 plantations in 2016 — by law enforcement agencies. 

The growers are of a variety of ethnic groups, including white. The influx of workers and plantations is visible is many ways, including the customers in local stores, carts over-glowing with gardening supplies, neighbors complaining about new grows and looking at Google maps for the plantations.

County ordinances were on the June Primary 2016 Ballot that would limit the number of plants that could be grown.

The opposition to these ordinances was, in my opinion, extreme and at times vicious as there is apparently BIG MONEY in the illegal commercial marijuana business. Sheriff Lopey has been verbally attacked many times for his outspoken stand against illegal marijuana grows and use.

I defend our Siskiyou Co. Sheriff Jon Lopey and our Siskiyou Co. Clerk Colleen Setzer. I know them. They are honest in their dealings. Their goal is to protect and serve the people of Siskiyou County.

I believe the real “intimidation” is from certain Hmong and their ACLU attorneys. Reports I have received state that a significant number of the questionable newly-registered voters in Siskiyou Co., last spring, claimed their residence was on private property where there was no home, no water or septic systems. You must be living in Siskiyou Co. to be able to vote in Siskiyou Co. The were no residences.

I, and others allege, that false addresses were supplied on legal registered voter applications. It is the job of the Secretary of State’s office to investigate possible voter fraud, when it is reported by a county clerk! So, now you get to read between the lines! — Editor Liz Bowen

Sept. 30, 2016

By Alayna Shulman of the Redding Record Searchlight

In the week leading up to June’s state primary election, at least two investigators from California Secretary of State Alex Padilla’s office spent three days tracking down members of the Hmong community in rural Siskiyou County.

But when allegations that they and local officers had intimidated those potential voters surfaced, Siskiyou County Sheriff Jon Lopey says the state office left him to take the blame.

Now, the issue has gained new life: A federal lawsuit looms, and Lopey has hired an attorney of his own to help restore a reputation he says was victim of a smear campaign.

While the state’s involvement is under renewed scrutiny, Lopey continues to face questions of his own about the events of early summer. Some of them come from Hmong residents who say the pattern of intimidation that spurred their lawsuit continues with selective enforcement of marijuana cultivation laws.

Originating in one of the state’s least populated and most conservative counties, the case is caught in the crosswinds of race, marijuana policy and law enforcement.

And one thing has emerged clearly from a Record Searchlight review of public records and details in the lawsuit: Padilla’s office played a greater role in the activities that allegedly intimidated a minority group than his aides initially disclosed.

Politically, that’s an uncomfortable position for the Los Angeles Democrat and California’s first Latino secretary of state. The second sentence of his official biography highlights his commitment to “increasing voter registration and participation, and strengthening voting rights.”

Padilla’s office has had little comment on the incident beyond acknowledging its involvement and saying that it dispatched poll monitors when it received complaints of voter intimidation by county, not state employees.

But an employee from the office is nonetheless named as a defendant in the suit, which doesn’t paint a simple picture of Siskiyou County employees going rogue during a polite and routine state investigation. One of the Hmong community plaintiffs alleges the state employee “terrified” him with threats of jail. Jesse Vang, 45, alleges in the suit that he also felt threatened by “a sheriff’s deputy standing at his gate holding an AR-50 assault rifle.”

Padilla’s office also has declined to say definitively whether its officials asked Lopey to accompany investigators as they visited areas known to have illegal marijuana growing operations. Lopey insists that they did, and, after the fact, asked him not to mention the office in a news release.

As claims of investigative teams wearing “commando-style body armor” and confronting Hmong residents spread, Lopey found himself at the center of a media firestorm that spread coast to coast: He was named in a piece by the Southern Poverty Law Center, which tracks hate groups, as having allegedly intimidated minorities, and a Record Searchlight editorial denounced his actions. The California Attorney General’s Office went to Siskiyou County to investigate the alleged voter intimidation.

“I don’t mind getting attacked. But at least people could tell the truth. And they’re not,” Lopey said, calling the Secretary of State’s Office’s conduct “cowardly and totally inappropriate.”

Sam Mahood, press secretary for the office, said it didn’t release information on the case because of a policy to not comment on any investigation, and that the Sheriff’s Office shouldn’t have either.

Meanwhile, one key element of the early allegations is notable for its absence: reports that deputies set up checkpoints to target and intimidate Hmong voters are not included in the lawsuit, and the person who raised those allegations now says she can’t substantiate them.

Initial concerns

The episode appears to have begun when county Elections Clerk Colleen Setzer sent what she has said were suspicious voter applications to the Secretary of State’s Office for investigation.

Setzer did not return a message seeking comment on the case, but one of the attorneys representing the Hmong residents said her justification for flagging those applications as suspicious was a high number of property transactions in the areas and the absence of established homes on some of the properties. The lawsuit says at least 360 Hmong residents tried to register to vote at the time, though why so many of them were registering all at once remains unclear. An American Civil Liberties Union official involved in the case said most of them are new to the area and were drawn there by the rugged land that reminds them of their home country, Laos.

Each of the 10 plaintiffs is identified in the suit as having purchased her or his property within the past year — mostly in the first few months of 2016. The plaintiffs are represented by three San Francisco attorneys. The plaintiffs also have been in close contact with Lori Shellenberger, California voting rights director for the ACLU, since the investigation began.

The suit seeks $100,000 in damages and unspecified “punitive and exemplary” damages. It also seeks restraining orders and permanent injunctions that would bar officials from entering the plaintiffs’ properties without a warrant, interfering with their ability to vote in the November election or enforcing county marijuana ordinances passed in 2015 and 2016 without a warrant.

Who made the call?

Lopey insists the Secretary of State investigators asked his department for protection “five or six times.”

“Let me clarify one thing: I didn’t call them,” he said. “They called me repeatedly and asked for my assistance and support.”

That’s something he has said from the start. In the June 3 news release on the investigation, Lopey wrote that several departments “were asked to assist the state investigators with their voter fraud investigation.”

Lopey acknowledged that, once he got back to the Secretary of State employees, he told them it was probably a good idea his deputies come along because of marijuana grows in the targeted areas and their remote location.

Secretary of State spokesman Mahood stopped short of saying whether his agency requested backup, simply acknowledging in a June 10 email to a Talking Points Memo reporter that the Sheriff’s Office “advised” his agency of potential security risks and “recommended” deputies join the agent investigating reports of voter fraud from the county clerk.

Mahood did not say which side initiated those conversations, and, when asked by the Record Searchlight for clarification, he promised to follow up, but did not.

In that June 10 email, the paragraph on the talks with Siskiyou County is preceded by one that stresses the importance of safety for Secretary of State investigators, whom Mahood noted are not allowed to carry guns while working. The email was released to an attorney representing Lopey and then provided to the Record Searchlight.

That attorney, James Buchal, believes the state won’t admit it asked for protection to avoid embarrassment.

Portland, Oregon-based Buchal noted the Secretary of State’s Office requested Lopey not to mention the office in a news release. Lopey obliged, simply telling the media that “State of California investigators” had been in the county looking into voter fraud allegations.



In accordance with Title 17 U.S.C. section 107, any copyrighted material herein is distributed without profit or payment to those who have expressed a prior interest in receiving this information for non-profit research and educational purposes only. For more information go to: http://www.law.cornell.edu/uscode/17/107.shtml

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Beef Checkoff Battle Heats Up in Federal Court

Agriculture, cattle, CORRUPTION, Courts, Lawsuits

Billings, Mont. – A flurry of motions were filed recently in the lawsuit filed by R-CALF USA against the national beef checkoff program (Beef Checkoff). The group’s lawsuit was filed May 2 in the U.S. District Court for the District of Montana.

The initial complaint alleges the government, represented by Agriculture Secretary Tom Vilsack and the U.S. Department of Agriculture (USDA), is operating the Beef Checkoff in violation of the U.S. Constitution by compelling cattle producers to subsidize the private speech of private state beef councils, notably the Montana Beef Council. Members of R-CALF USA, the complaint alleges, object to the Montana Beef Council’s speech because it advocates that all beef is the same regardless of where or how it was produced.

In July the government requested an extension of time for which to answer the complaint and R-CALF USA did not object. But, rather than provide a typical answer, the government filed a motion in early August to dismiss or stay the group’s lawsuit. R-CALF USA fired back with its own cross-motion in late August asking the court to award summary judgement and immediately end the checkoff program’s unconstitutional taxation of ranchers. The group claims it is entitled to summary judgement because the government, in its motion to dismiss or stay, essentially acknowledged that the Beef Checkoff is improperly authorizing federal taxes to be used to fund private speech.

The government’s reply to R-CALF USA’s opposition to the motion to dismiss or stay was due September 7 and its opposition to R-CALF USA’s cross-motion for summary judgment would have been due September 14. But the government again requested a delay until nearly the end of September and the court granted its request.

On September 12, the same day the court granted the deadline extension for the government, R-CALF USA filed a new motion , this one for a temporary restraining order (TRO), which is an emergency action to prevent the infliction of irreparable injury. In this case, the group seeks a TRO to stop the government from continuing to use tax monies paid by cattle producers to fund the private speech of the Montana Beef Council until the court can act on the group’s cross-motion for summary judgment or a preliminary injunction. In its pleadings, R-CALF USA argued that precedent well establishes that a violation of the First Amendment is an irreparable injury and that the operation of the Beef Checkoff in Montana violates the First Amendment. Because the fall cattle run – the time of year when many Montana cattle are sent to market – is now beginning, the group argues the TRO is necessary to prevent compounding violations of cattle producers’ constitutional freedoms while the government delays.

The government immediately cried foul and on the next day, September 13, called R-CALF USA’s motion for a TRO an “extraordinary request” in its atypical motion seeking to delay resolution of the TRO.

Before the ink could dry on the government’s latest motion, R-CALF USA, yesterday, filed its response to the government’s motion , accusing the government of repeatedly engaging in procedural tactics to avoid addressing the merits of the case. This, according to the motion, is inflicting additional First Amendment harms on cattle producers as is established “by black letter Supreme Court law.”

David Muraskin with Public Justice, Dudley Butler with Butler Farm & Ranch Law Group, and Bill Rossbach of Rossbach Law, P.C. in Missoula, Montana, are co-representing R-CALF USA in the lawsuit.

Contact: R-CALF USA CEO Bill Bullard

Phone: 406-252-2516; r-calfusa@r-calfusa.com


Steve Ralls, Public Justice

Phone: 202-861-5246; sralls@publicjustice.net

# # #

R-CALF USA (Ranchers-Cattlemen Action Legal Fund, United Stockgrowers of America) is the largest producer-only cattle trade association in the United States. It is a national, nonprofit organization dedicated to ensuring the continued profitability and viability of the U.S. cattle industry. For more information, visit www.r-calfusa.com or, call 406-252-2516.  


Public Justice pursues high impact lawsuits to combat social and economic injustice, protect the Earth’s sustainability, and challenge predatory corporate conduct and government abuses. For more information, visit www.PublicJustice.net

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Siskiyou County sued in federal court over alleged Hmong voter discrimination

Lawsuits, Siskiyou County

PNP comment: This is a ridiculous lawsuit. Our elected officials are being “threatened” for doing their job! — Editor Liz Bowen

Redding Record Searchlight

Sept. 15, 2016

By Alayna Shulman of the Redding Record Searchlight

Some Hmong Siskiyou County residents are suing the sheriff and elections clerk over alleged discrimination, saying the officials tried to keep members of the Asian ethnic minority group from voting and “tainted” the June election. But Sheriff Jon Lopey adamantly denies the accusations in the suit, saying it’s veiled retaliation for his efforts to quash illegal commercial marijuana grows in the county.

“It’s all about the marijuana; it’s all about the money,” Lopey said. “I think that’s why I’m targeted and my county’s being targeted and my department. I’m doing my job; I’m enforcing the law, and my co-workers are doing the same thing fairly and impartially.”

Attorneys who filed the suit reject that.

“I don’t see what he’s talking about,” attorney Brian Ford said. “There’s nothing out there.”

The suit served to the county Thursday also names Siskiyou County Elections Clerk Colleen Setzer, Secretary of State employee Alex Nishimura, Siskiyou County and the California Department of Forestry and Fire Protection as defendants.

According to the suit, at least 360 Hmong residents tried to vote in the June election, but over 200 of them were not listed on the voter rolls in time and another 50 gave up out of fear. It alleges several of those Hornbrook-area residents were traumatized, with one having “continuous nightmares since the incident” and another going to the hospital with a stress-aggravated heart condition after visits from state and county investigators “armed with assault rifles and wearing commando-style body armor and uniforms.”

The interactions were “very friendly and amicable,” Lopey said, and his department would never discriminate. The deputies only wore guns and gear during the visits because there are many marijuana grows in the area, he said.

Lopey also noted that he didn’t initiate the investigation, but was simply asked to provide navigation and protection for state employees.

In an email to the Record Searchlight this week, a spokesman for Secretary of State Alex Padilla acknowledged publicly for the first time that the office had sent investigators.

“During the course of a recent investigation, the Siskiyou County Sheriff’s Department advised that locations we intended to visit posed potential security risks,” press secretary Sam Mahood wrote. “They recommended that their deputies accompany our investigators.”

Mahood said the department later received complaints of voter intimidation, “and deployed election monitors to polling places throughout the county on Election Day to protect the voting rights of local citizens.”

Since then, the Secretary of State’s Office tried to protect its image while letting Lopey and his department take all the criticism, Lopey said.

“I’m being sued for enforcing the law,” he said.



In accordance with Title 17 U.S.C. section 107, any copyrighted material herein is distributed without profit or payment to those who have expressed a prior interest in receiving this information for non-profit research and educational purposes only. For more information go to: http://www.law.cornell.edu/uscode/17/107.shtml

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California high court upholds ban on dredges to extract gold

Courts, Federal gov & land grabs, Lawsuits, Mining

Los Angeles Times

Associated Press
August 22, 2016

California’s ban on the use of suction dredges to extract gold from rivers is legal and not overridden by a 19th century federal law that allows mining on federal land, the California Supreme Court ruled Monday.

The court’s unanimous decision was a victory for environmentalists and a blow to miners, who argued that the ban essentially stopped gold mining because doing it by hand is labor-intensive and makes the enterprise unprofitable.

Environmentalists say suction dredge mining risks killing fish and stirring up toxic mercury.

The high court’s ruling came in an appeal of a criminal case in which miner Brandon Rinehart was convicted of a misdemeanor for suction dredge mining without a permit in 2012 and sentenced to three years’ probation.

Associate Justice Kathryn Werdegar, writing for the court, said the federal Mining Law of 1872 did not guarantee a right to mine free from regulation.

Instead, its goal was to protect miners’ property rights involving the federal land to which they laid claim, she said.

“The mining laws were neither a guarantee that mining would prove feasible nor a grant of immunity against local regulation, but simply an assurance that the ultimate original landowner, the United States, would not interfere by asserting its own property rights,” she wrote.

Rinehart’s attorney, James Buchal, said the high court showed a “casual disregard” for federal law.

He said Rinehart would probably ask the court to review its ruling or appeal to the U.S. Supreme Court.

Suction dredges are powerful underwater vacuums that suck up rocks, gravel and sand from riverbeds to filter out gold.

Miners countered that the state failed to show suction dredge mining killed any fish.

The court’s ruling came more than a century after the famous California gold rush that brought tens of thousands of miners to the state from around the country.

California has experienced a mini-gold rush of sorts in recent years, as low water levels caused by the drought have lured amateur prospectors to riverbed spots that have been out of reach for decades.

There are more than 20,000 mining claims on federal lands in California. Suction dredge mining largely occurs in mountain regions.

California passed a law last year that allows state officials to resume granting permits for suction dredge mining under certain conditions that include making sure the practice does not have any significant effect on fish and wildlife. The conditions have not yet been met, so no permits have been granted.


In accordance with Title 17 U.S.C. section 107, any copyrighted material herein is distributed without profit or payment to those who have expressed a prior interest in receiving this information for non-profit research and educational purposes only. For more information go to: http://www.law.cornell.edu/uscode/17/107.shtml

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‘Massive’ ESA lawsuit threatened—again

Agriculture, Congress - Senate, CORRUPTION, Courts, Endangered Species Act, Greenies & grant $, Lawsuits


Western Livestock Journal

AUG 26, 2016


—History set to repeat itself; environmental group tries to force USFWS’ hand

Is it 2016 or 2011? Or perhaps just a bad case of déjà vu?

Last Tuesday saw the history of 2011 repeated as an environmental litigation group threatened to sue the U.S. Fish and Wildlife Service (USFWS) to force Endangered Species Act (ESA) decisions on 417 species.

Five years ago saw an ESA “mega-settlement” which forced USFWS to crank out over 1,200 backlogged listing and critical habitat decisions. In return, the two environmental groups that brought the case—Center for Biological Diversity (CBD) and WildEarth Guardians—were expected (although not required) to back off on further litigation and additional listing petitions.

But now, the CBD is threatening to sue again, hoping to force “12-month finding” decisions on this new group of species. In fact, CBD and other groups never did stop filing petitions or lawsuits. Since the 2011 settlement, CBD and others have petitioned roughly 140 species, and CBD and WildEarth Guardians alone have filed over 130 of them since 2013, according to CBD’s own website.

Legal details

The 12-month finding is one step in the ESA listing process. One year after a species is petitioned for listing, USFWS is required to determine whether listing is “not warranted;” “warranted,” which leads to 60 days of public comments, then a final listing decision; or “warranted but precluded,” which places the species on the “candidate” list.

According to CBD, those 12-month findings on the 417 species are anywhere from one to seven years late. The species’ locations span from Washington State to Florida. They include 235 invertebrates (mussels, snails, beetles, etc.), 87 plants, 58 amphibians and reptiles, 27 fish, six birds, and seven mammals.

“This is precisely why the [ESA] is broken,” said Ethan Lane of the Public Lands Council (PLC) and the National Cattlemen’s Beef Association (NCBA) in the groups’ statement.

“Groups like [CBD] are attempting to force their agenda on [USFWS] through litigation abuse. Substantive ESA reform is needed now to allow [USFWS] the autonomy necessary to prioritize species conservation according to need, rather than political agenda.”

Litigation: exception or rule?

CBD cites a recent study that found that “lawsuits from conservation groups … have played a key role in speeding protection for imperiled species.” The study was co-authored by CBD’s own Endangered Species Director, Noah Greenwald, and published last month in the academic journal, Biological Conservation.

Under the ESA, anyone can petition to list a species as threatened or endangered. From that point on, USFWS faces multiple deadlines and must issue multiple decisions. Wyoming attorney Karen Budd-Falen, who testified before the U.S. House of Representatives Committee on Oversight and Government Reform on April 20, said the listing process for just one species provides environmental groups with eight different opportunities to sue USFWS. And, she added, the ESA allows litigants to reap attorney fees. She told WLJ that she has seen groups charge $775 per hour for attorney fees. ESA litigation, she said, is a “business decision” on the part of environmental groups, and said it’s having the effect of “shutting down the [USFWS] from implementing the entirety of the ESA.”

Budd-Falen said USFWS is so swamped with petitions and the ensuing lawsuits that species recovery has become an afterthought. As of April, only 63 of the total 2,258 listed species had been delisted. Many of those delisted were not actually recovered; 19 of them were removed because of an error in the original data, and 10 of them, she said, had gone extinct.

Budd-Falen said USFWS is trending away from creating species recovery plans, which are usually a prerequisite to delisting a species.

In the 1990s, 843 species had recovery plans. From 2010 to today, only 177 species have been included in recovery plans.

The ESA requires USFWS to develop recovery plans and measurable objectives that would trigger a species’ delisting. However, the law doesn’t put a time frame on recovery plans and objectives. The lack of an enforceable time frame, Budd-Falen said, adds to USFWS’ propensity of putting recovery plans on the back burner.

Litigation versus science

Budd-Falen stated that one effect of all the litigation has been a shift away from science-based decision making and recovery plan development. Instead, USFWS has turned its focus to meeting court-ordered deadlines.

One of USFWS’ documents says as much: A memorandum from May 20, 2014 states, “Our primary (and perhaps only) focus will be on meeting court-ordered and settlement deadlines for findings…we do not plan to carry out… non-[2011 settlement] findings and proposed rules, or recovery plan revisions.”

The imposition of litigation deadlines has been felt on the ground in various ways, according to Budd-Falen. For example, according to the USFWS, the 2011 settlement prevented it from delaying its listing decision on the lesser-prairie chicken, rather than give the locally-driven and USFWS-approved range-wide conservation plan a chance to work (the decision has since been overturned nationwide by court order).

Similarly, the agency did not have enough time to update the Mexican wolf recovery plan in light of litigation-imposed deadlines.

“In other cases, USFWS has denied requests for extensions of time to comment on [experimental population rules] or has stated that certain activities have not been done because of the requirement imposed by litigation deadlines,” Budd- Falen testified.


In May of 2015, the Obama administration proposed new regulations to slow down listing petitions by requiring more scientific documentation and consultation with state wildlife agencies. However, Budd-Falen told WLJ that USFWS backed off on their proposal after receiving pushback from environmental groups. The revised proposal, she said, makes very little changes to the current procedures.

“Congress needs to fix [the ESA] so that there’s either an annual limit on petitions, or added flexibility on time frames,” she told WLJ.

Budd-Falen reported she has testified at least seven times on ESA problems over the years, but that so far Congress hasn’t enacted any reforms to the 1972 act. Several worthy bills have been introduced in recent years though, she said. They would have required more scientific rigor in ESA decisions; public posting of scientific documentation; capping of attorney fees; and specific involvement of state, local and tribal governments for species on their land.

“Congress has got to take away the cause of action— the courts can’t do it,” Budd- Falen said. “Congress has got to get its collective act together.” — Theodora Johnson, WLJ Correspondent

In accordance with Title 17 U.S.C. section 107, any copyrighted material herein is distributed without profit or payment to those who have expressed a prior interest in receiving this information for non-profit research and educational purposes only. For more information go to: http://www.law.cornell.edu/uscode/17/107.shtml

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Federal judge dismisses challenge to Wyoming trespassing law

Agriculture, Lawsuits, Property rights



  • Casper Star Tribune

CHEYENNE, Wyo. (AP) — A federal judge has dismissed a lawsuit from groups that challenged Wyoming laws prohibiting trespassing on private lands to collect data.

Groups including the Western Watersheds Project, the Natural Resources Defense Council and the National Press Photographers Association sued Wyoming last year.

The groups claimed state laws prohibiting trespassing to collect data were unconstitutional. The groups said the laws, which allowed both civil penalties and criminal prosecution, would block people from informing government regulators about such things as violations of water quality rules and illegal treatment of animals.

U.S. District Judge Scott Skavdahl of Casper dismissed the groups’ lawsuit Wednesday, ruling there’s no constitutional right to trespass on private lands.

“The ends, no matter how critical or important to a public concern, do not justify the means, violating private property rights,” Skavdahl wrote.

Skavdahl last winter expressed concerns about earlier versions of the laws, which the Wyoming Legislature had passed early last year. The earlier versions sought to prohibit collection of data on “open lands,” a term Skavdahl said could be stretched to cover more than just private property.

In response to Skavdahl’s criticism, the Wyoming Legislature earlier this year revised the laws to specify they only applied to trespassing to collect data on private lands.

Wyoming Gov. Matt Mead on Thursday said he was pleased with Skavdahl’s dismissal of the groups’ lawsuit.

“There has been a lot of misinformation about the intent of this law,” Mead said. “The judge’s ruling affirms that the issue at the heart of the matter is preserving private property rights — a fundamental right in our country.”



In accordance with Title 17 U.S.C. section 107, any copyrighted material herein is distributed without profit or payment to those who have expressed a prior interest in receiving this information for non-profit research and educational purposes only. For more information go to: http://www.law.cornell.edu/uscode/17/107.shtml

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