In Blistering Dissent, Judge Mines Deep for Verbal Nuggets

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Written By admin at Saturday, June 2nd, 2012

“Here we go again,” Ninth Circuit Judge Milan Smith wrote at the beginning of a Friday dissent in a mining case in which he joined prospectors, regulators, environmentalists and a remote Indian tribe exasperated by fighting over the use of suction equipment to mine the dregs of California’s gold rush.

The issue, which the Journal wrote about in this story, is a long-running tension between recreational miners who like to suck up river sediment looking for gold and the government agencies that regulate them.Some federal and state agencies have paved the way for a California moratorium on the practice to be lifted; others are trying to keep the practice banned.

On Friday, an en banc majority opinion said the U.S. Forest Service improperly approved recreational gold mining in some California rivers because it didn’t consult with other agencies about endangered fish.

Judge Smith, and three judges who joined his dissent, were unimpressed.

He opened with an excerpt from Gulliver’s Travels accompanied by an illustration of Gulliver bound by Lilliputians. He quoted too from Dante (“Abandon all hope, ye who enter here”) and from the Journal’s April story, and wrote that the majority decision is the latest in a series of Ninth Circuit environmental cases that “ undermine the rule of law, and make poor Gulliver’s situation seem fortunate when compared to the plight of those entangled in the ligatures of new rules created out of thin air by such decisions.”

Perhaps most striking was the indictment of the  Ninth Circuit in Mr. Smith’s closing.

“No legislature or regulatory agency would enact sweeping rules that create such economic chaos, shutter entire industries, and cause thousands of people to lose their jobs. That is because the legislative and executive branches are directly accountable to the people through elections, and its members know they would be removed swiftly from office were they to enact such rules,” he wrote.

“Unfortunately,” he added, “I believe the record is clear that our court has strayed with lamentable frequency from its constitutionally limited role.”

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