From James Buchal:
Some of you have asked about the significance of the California Supreme Court’s Order of July 15, 2016 (copy attached), which addresses the requests for judicial notice by the parties (also attached). As you may recall, the trial court had not permitted evidence, the State then attempted to present its own evidence to the Supreme Court, and I told the Court that was improper, but if they were going to open the doors, they should take our evidence too.
In general, the Court has taken a restrictive approach, allowing the State to submit the legislative history of the mining law (State Exhibits A-M) and the Karuk Judgment (State Exhibit Q). The Court refused to allow the State’s data about gold prices and gold mining (State Exhibits N-P). The Court also refused to allow the State to submit portions of the FSEIR as evidence (State Exhibits R-X.) This has the effect of excluding the primary information cited by our opponents concerning environmental impacts, which could be seen as a positive sign.
We had attempted, conditionally, to offset the environmental evidence with our own evidence, and the Court allowed none of this evidence either (Our Exhibits D & 1-13 & 15). The Court did allow some federal materials of ours (and SB 637), but did not allow Judge Ochoa’s ruling (Our Exhibit F), probably because it constitutes unpublished authority. The Court also would not take a copy of the brief of the United States in Granite Rock (our Exhibit 14), and some of the filings in the Oregon Bohmker case (Our Exhibits 16-19); the Court did take the Oregon bill (SB 838, our Exhibit 20).
On the whole, the action signifies that the Supreme Court does not intend to allow any party to make its record before the Supreme Court rather than the trial court, which is the right result. It would have been a bad sign, for example, if the Court took all the FSEIR evidence against suction dredge mining and threw out our responses. I cannot say, however, that all these rulings really foreshadow any ultimate outcome on the merits.
I will keep you posted as to further developments.
James L. Buchal
Murphy & Buchal LLP