U.S. v. Godfrey
Public Lands for the People and New 49ers Legal Fund assist miner cited for using a sluice box in a stream!
On August 21, 2014 the United States Forest Service filed five Class B misdemeanor counts against John Godfrey, a small scale miner from California.
Count One: Unauthorized cutting and damaging of any timber, tree and forest product. Violation of 36 C.F.R 261.6 (a)
Count Two: Causing timber, trees, slash, brush and grass to burn without a permit. Violation of 36 C.F.R 261.5 (c)
Count Three: Damaging any natural feature or property of the United States. Violation of 36 C.F.R. 261.9 (a)
Count Four: Unauthorized trail and significant surface disturbance on Forest Service managed lands. Violation of 36 C.F.R. 261.10 (a)
Count Five: Placing in or near a creek any substance which may pollute. Violation of 36 C.F.R 261.11 (c).
Mr. Godfrey, a member of PLP, contacted us and our Northern California office representative Clark Pearson assisted Mr. Godfrey in building his defense and coordinating with the Federal Defender’s office. On September 9 -10, 2014 a two day bench trial was held. Magistrate Judge Newman found Mr. Godfrey “NOT GUILTY” on counts One and Two because the defendant’s actions were “mining-related!” Needless to say, we were very happy with this ruling. However, the magistrate judge found defendants guilty on counts Three, Four and Five for the following reasons:
“… it was “not possible to look at the photographs in this case and find that there was not significant resource disturbance in this case, and that does include the cutting of trees; the removing of bushes and brush; the burning; the breaking up of boulders, and using chains and using a drill to do so; the use of chemicals, whether non-toxic or otherwise; the use of a hose, even if only for a few times, but then to use a hydraulic method; the damming of the water.”
On November 5, 2014, Defendant was sentenced to five years of probation, which may terminate in three years if he complies with all terms of probation, including the payment of restitution. Defendant was also ordered to complete 200 hours of unpaid community service, pay $7,500 in restitution, and pay a $30 special assessment. Id. Pursuant to 18 U.S.C. § 3402, Federal Rule of Criminal Procedure 58(g)(2)(B), and Local Rule 422, Defendant now appeals his convictions on Counts Three, Four, and Five.
On appeal, PLP and Clark Pearson contacted James Buchal who represents the New 49ers Legal Fund to write an Amicus brief for Mr. Godfrey’s appeal. The Amicus brief focused on the due process of law that was denied to Mr. Godfrey to argue the vagueness of the regulatory term: ‘significant surface resource disturbance’ and to stress in the Federal Defender’s Reply brief that Godfrey did not add or place anything that was not already present naturally in the stream course. The Clean Water Act only regulates “additions.”
PLP and the New 49ers worked with the Federal Defenders’ office for Mr. Godfrey’s appeal that was held on June 2, 2015. The Appeals Court (District Court) affirmed the convictions on counts Three and Four but reversed the conviction on count Five! Mr. Godfrey reserves the right to appeal counts Three and Four to the Ninth Circuit Court and PLP will be there to represent him if possible.
Regarding Count Five. Count Five charges that Mr. Godfrey was “polluting” the stream by running gravels through his sluice box! This is, of course, absurd! We really like the Judge’s opinion and Mr. Godfrey could forever be connected with the “Cheerios” decision! Here is what the Court stated:
Returning to the Supreme Court’s “one ladle of soup”
example, the Court agrees that the present case is not closely analogous. S. Florida Water Mgmt. Dist. v. Miccosukee Tribe of Indians, 541 U.S. 95, 110 (2004)). Defendant did not merely remove water from one location in Poorman Creek and return that same water to another location in Poorman Creek. Rather, he diverted the water through his mining g operation, and returned it, along with “sands, silts and clays and bottom deposits” to Poorman Creek, downstream of his operation. However, as noted by the Magistrate Judge and as emphasized now by Defendant, the entire mining operation occurred beneath the high water mark of Poorman Creek. Importantly, there is no evidence that any foreign substance (such as a chemical) was introduced to Poorman Creek. See RT2 at 2-44 – 2-45 (the Magistrate Judge, noting that “there wasn’t any evidence that I’m aware of that any of those broken up rocks or chemicals ended up in the creek”); see also RT1 at 182 (testimony of Huggins, noting that “chemicals getting into the water” was “not the major concern in this case”). In this sense, a more apt analogy may be that of a bowl of cereal.
At its low point, Poorman Creek is much like a bowl of Cheerios with very little milk in it, with a number of Cheerios pieces “stranded” up on the sides of the bowl. Filling the bowl with milk releases those “stranded” Cherrios pieces back into the milk, but nothing foreign has been added to the bowl. Similarly, Defendant’s operation merely released sediment that was already part of the creek-bed back into the creek. As testified to by Jeff Huggins, this activity may have a caused a significant effect on Poorman Creek and those ecosystems which rely on it. RT1 at 1-177. Indeed, as discussed above, Defendant has been properly convicted of causing an unauthorized significant disturbance to surface resources. However, the Government’s evidence was insufficient to sustain Defendant’s conviction under 36 C.F.R. § 261.11 for polluting the creek. Accordingly, Defendant’s conviction on Count 5 is reversed.
BIG WIN HERE! BUT… we have two more Counts to appeal. On we must go to the Ninth Circuit! Public Lands for the People is excited about working hard to protect the rights of the small scale miners.
To read the full text of the court ruling, click here.
We could not do this without the support of the mining community at large and the work of other groups that are engaged in the fight for our rights such as The New 49ers, WMA and AMRA. Together we are making a difference.
Thank you for your continued support! Let’s take it back and KEEP IT!
Public Lands for the People