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Persistence Prevails as Walt Wegner, Vice President of PLP wins his $47.00 suction dredge permit fee reimbursement in small claims court.
PLP Gets the Fee
by Walt Wegner, Vice President, Public Lands for the People
Me being as angry as everybody else regarding SB670 prohibition on suction dredge mining in the State of California, I wanted to take action immediately. So on August 10th 2009 I wrote a letter to Donald Koch, Director of California Department of Fish & Game, certified return receipt requested as I do with all official correspondence, stating that I purchased a dredge permit on May 12, 2009 in the amount of $47 and I included a copy of the application and the credit card receipt and stated that due to the subsequent legislation SB670 my permit is now null and void and demanded a refund of my $47 and if I don’t receive a response from your office in 14 days I will take legal action in small claims court to recover my permit fees, court costs and any other related expenses. Having not received a response from the California Department of Fish & Game. On October 8th I filed form SC-100 Plaintiff’s Claim and Order to Go to Small Claims Court listing myself as the plaintiff and Donald Koch, Director of Fish & Game in his official capacity as defendant claiming $47 for my suction dredge permit and $900 for a loss of gold due to my dredge season being cut short figuring I had another week in my dredge season. When I went in to file the small claims lawsuit, the clerk told me I could not file this in Van Nuys because the defendant was in Sacramento and I would have to file in Sacramento. I responded, No, the Director of Fish & Game does business in all of California and I purchased the permit in Los Angeles County, so I was filing in Los Angeles County court. At that same time, they told me I could not sue Donald Koch as an individual, that I could sue the Department. I asked them to see the law stating this. They were unable to provide me with the law, so they accepted and filed the lawsuit. On October 10th, 2 days later, I finally received a response from the Department of Fish& Game, it was not from Donald Koch, but the letter read that they received my letter and that SB 670 did not authorize refunds and they were not going to refund my money. My court date was set for December 14, 2009. On October 30th, I received Form SC-105 Request for Court Order and Answer. The person making the request was Bradley A Solomon, Deputy Attorney General for the State of California asking that the case be dismissed as the plaintiff’s had failed to plead exhaustion of his available administrative remedies, specifically plaintiff had failed to comply with the California Tort Claims Act. They also stated that the legislation did not provide for a refund and there were procedural defects in the Complaint as I had marked that I am not suing a public entity. They claim that Donald Koch in his official capacity is the same as a public entity. I then responded to the Court with the paperwork provided me SC-105 stating that the defendant in this case is Donald Koch it is not the Attorney general of California and that this was not a tort claim that I had paid for services that I did not receive and that I demand my day in court. I sent that on 11/5/2009. On 12/11/09, Friday before my court date, I received a Minute Order and Clerk’s Notice of Ruling from the LA Superior Court informing me that Court was convened at 8:30 am on 12/9/2009 in Department 108, Honorable Judge Gregg Marcus presiding, stating that the Court rules that my case had been dismissed without prejudice per court order giving no reason for dismissal and not allowing me to argue my case. Being very suspicious of this I showed up for my original court date, Monday, December 14th, to find that my case was not on the docket. I went to the clerk’s office and they confirmed that my case was dismissed in closed chambers without anyone appearing. I asked the clerk’s office for the law that allows a judge to dismiss a case without me being heard. She could not provide that. I told them at this time that I felt my right to due process had been violated, that they needed to show me the law. I then wrote a letter to Judge Marcus, who had dismissed my case, telling him the story from the beginning and stated that I was never notified that my case was to be heard in chambers or that the date had changed and that I believed at the very least my right to due process had been violated and at the worst there was a conspiracy to prevent my case from being heard. I requested the judge to indicate the specific law which would allow a case to be dismissed in chambers without notification. I again stated that my rights to due process had been violated. I requested the specific law and reasoning that his dismissal was based upon. I asked him to cite the specific law which stated that I could not sue Donald Koch as individual in this matter. I also stated that if the case was dismissed due to a problem with the filing to state the law upon which his decision was based. I requested a response within 30 days from the date of the letter and cc’d the letter to the original judge on the case, Fran Pavley my state senator and Brad Blumenfeld my state assemblyman. Then on or around the 14th of January I received another Minute Order and Clerk’s Notice of Ruling telling me that once again court had convened again at 8:30 am in Department 108 without me being present with the motion granted was to vacate dismissal of 12/9/09 set for oral argument on defendant’s motion both side to be present on 2/3/2010 at 10:00 am in department 108, Van Nuys, California listing me as the plaintiff, Donald Koch Director of Department of Fish & Game and Bradley H Solomon Deputy Attorney General as defendants. Once again I wrote a letter to Gregg Marcus stating that I received the letter notifying me of my new court date stating again that I did not sue the Assistant Attorney General and could only assume that he was going to be there to defend Donald Koch. I expressed my concern that as far as my knowledge goes, legal representation is not allowed in small claims court. I stated again that my right of due process had already been violated when the court previously dismissed my case without me being present and I asked the court to deny the representation of the assistant attorney general to aid Mr. Koch and to see that I’m fairly heard on the issue between myself and Mr. Koch. On February 3, 2010 I appeared in court. Donald Koch was not present. Instead Terry Dickerson from the CADFG appeared in place of Donald Koch. At the beginning of the hearing I stated to the judge that the defendant Donald Koch is not here and request that the judge rule in my favor due to the defendant not showing up. He did not respond to my request, I also requested the judge to ask Ms. Dickerson if she had a license to practice law. At that time the judge stated that this was irrelevant and I replied to the judge saying your honor on Form SC100, information handed out by the court house, you may talk to a lawyer before or after the case, but you may not have one represent you in court unless this is an appeal from a small claims case. The judge then asked T. Dickerson if she was an attorney. She replied, no, she was a biologist. The judge asked if I was satisfied, and I said yes. However, I was not satisfied to continue with the proceeding because she cannot represent Donald Koch in small claims court. The judge then asked me to plead my case, so I went through the order of events once again and I presented to the judge as evidence a letter from the CADFG stating Notice of Refund 2009-2010 Commercial Fishing Salmon Fees upon closure of the salmon fishing season. The judge stated to me that salmon fishing and suction dredging are two separate things. I stated, you’re right your honor, they are. Me as a mineral estate owner have been granted rights under federal law and salmon fishermen do not have the same rights as I do. Therefore, I’m even more entitled to my permit fees and I stated to the judge that the State of California does not authorized mining, they only regulate, reasonably. ha hah. At that time, he asked the defendant if she had a sworn affidavit from Donald Koch giving her authority to represent him in court. She stated, she did not. He asked her if she had a copy of SB670 stating that dredge permit fees were not approved for refund. She stated, she did not. He asked her if she had studied the law and if she could cite any of it. She responded, no. The judge then asked me to produce records to prove my loss of revenue from the dredge season. I did not provide the court with that record. My bad, as they say these days. Upon that he stated that he finds for the plaintiff in the amount of $47, case dismissed. After leaving the court room and speaking with Gerald Hobbs, pres of PLP, I realized that I should have asked for my court costs and any fees related to that from the judge, but in the heat of the moment, I forgot. Once again, my bad. Driving home from the courthouse, I thought to myself, WOW, I wonder what would happen if 50, 100, 300 or maybe 3,000 miners who purchased dredge permits asserted their rights and followed the same path I followed. Would the DFG then do what is right and refund permit fees? Or would they spend more time and money defending multiple lawsuits in small claims court.
Let me just say, that what one person can do, another person can do!
Page Updated: Sunday February 07, 2010 03:41 AM Pacific
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