Suction Dredge Mining
Karuk Tribe of California v. US Forest Service. (see also x) ; Panel: Klamath mining approval violates ESA; 9th Circuit overturns suction dredge gold mining rulings; Ninth Circuit Court Reverses Federal Decision on Suction Dredge; California: Tribe Wins Ruling Against Gold Mining; Court Orders Forest Service To Regulate Gold Mining in Salmon Streams; Court makes it tougher on small-time gold miners; Court Rules For New Regulation Of Gold Mining In Western Salmon Streams; California: Tribe Wins Ruling Against Gold Mining; Plain talk in a Ninth Circuit dissent; Further thoughts on Karuk Tribe; Federal Ninth Circuit Court of Appeals Rules in Favor of Endangered Species Over 1872 Mining Law - Strikes Down U.S. Forest Service Approvals of Mining Projects Across West; The Appelate Court has reversed and remanded. This means that all suction dredge mining must go through expensive ESA consultation. The dissenting judges' opinion used the following illustration in his comments.
M. SMITH, Circuit Judge, with whom KOZINSKI, Chief Judge, joins, and with whom IKUTA and MURGUIA, Circuit Judges, join as to Parts I through VI, dissenting:
|"I attempted to rise, but was not able to stir: for, as I happened to
lie on my back, I found my arms and
legs were strongly fastened on each side to the ground; and my hair, which was long and thick, tied down in the same manner. I likewise felt several slender ligatures across my body, from my arm-pits to my thighs. I could only look upwards; the sun began to grow hot, and the light offended my eyes."
Jonathan Swift, GULLIVERS TRAVELS, Chapter 1.
Dredge Moratorium extended indefinitely The change was contained in the Resources Omnibus Trailer Bill (a trailer to the main CA budget). Previously, the moratorium was slated to sunset in 2016. Vote may extend suction dredge fight; California budget would indefinitely extend ban on dredge mining; Legislature Removes Sunset Date on Suction Dredge Moratorium Requires Fish and Game to Consult Tribal Commission as Part of Environmental Study; Dredge miner found dead on Upper Klamath; DFG is not selling suction dredge permits at this time, and cannot predict when that might occur. DFG is currently prohibited by statute from issuing suction dredge permits. (Fish & G. Code, § 5653.1, subd. (a).) The use of any vacuum or suction dredge equipment in any river, stream, or lake in California is also currently prohibited by statute through June 30, 2016. (Id., subd. (b).)
Lawsuit Filed! The miners strike back...; The New 49'ers and several others filed takings litigation against the California Department of Fish & Game (DFG) on 13 April (2012);PLP files another lawsuit against the DFG o preserve mining; Group files new suction dredge lawsuit ; Modern-day gold mining; . Suction dredging rules spur suit - Group tries to halt implementation of new regulations - A coalition of commercial fishing groups, environmentalists and the Karuk Indian tribe are suing the state in an effort to prevent it from enacting new regulations on using suction dredging to mine for gold. Suction dredging: No permits yet; Proposed amendments would close county streams to suction dredging ; CA DFG proposed regulations for suction dredge mining; Armstrong comments; DFG expects to release the related Final Subsequent Environmental Impact Report on March 7, 2012; Costales Comment; DFG is not selling suction dredge permits at this time, and cannot predict when that might occur. DFG is currently prohibited by statute from issuing suction dredge permits. (Fish & G. Code, § 5653.1, subd. (a).) The use of any vacuum or suction dredge equipment in any river, stream, or lake in California is also currently prohibited by statute through June 30, 2016. (Id., subd. (b).); FSEIR; Western Mining Alliance June 2012 Newsletter
California Court of Appeal (1st District, Division 3)
Case Notification for: A126402 - the following transaction has occurred in:
Hillman v. California Department of Fish and Game - Reversed in full
(Injunction overturned PLP wins)
Disposition status as of 2011-12-28: Final
The order granting plaintiffs' motion for a preliminary injunction is
reversed in full. Each party shall bear its own costs on appeal. urt of Appeal Case: A126402 Court of Appeal Opinion: [PDF] [DOC] Caution: For information on when opinions may be cited or relied upon, click here.
For opinions, go to the following web site:
current status of suction dredge mining in CA
Presentation Jim Foley
Public Lands for the People v. DFG
Dear Supervisor Marcia Armstrong:
I want to thank you for the time you spent, and your hard work, in gathering and sending to Jerry Hobbs and myself the very important documentation from Siskiyou County , and its officials, regarding suction dredge mining over the last 5 years. It will be very helpful to me, and Public Lands for the People, Inc., in our litigation seeking to restore suction dredge mining to California .
I am attaching an itemization of the extensive documentation which you have provided. It is an impressive piece of work. Again, I thank you for sharing with us your extensive knowledge and professional acumen regarding suction dredge mining in Siskiyou County and California .
With the highest personal regards, I remain very truly yours,
Attorney for Public Lands for the People, Inc.,
and other miners, in litigation to restore suction dredge mining to California
Rep. Peter DeFazio Launches Attack on Galice Creek and Grave Creek (Rogue River - Oregon)
extends moratorium on suction dredging "The bill, AB 120, includes a
five-year extension of an existing moratorium against the practice of suctioning
river-bottom gravels in search of gold and other minerals. That would stop dredging at
least until June 30, 2016." BLM regulations require compliance with state law,
including having a permit from the California Department of Fish and Game to operate
suction dredging equipment; Suction Dredge Mining Banned
Until 2016 Governor Signs AB 129
Senator La Malfa's speech on State Senate floor opposing the cuts
Budget Trailer Bill AB 120, (amended June 8, 2011), and approved by the Assembly (on June 15) and Senate (on June 10) but not acted upon by the Governor includes the
language on page 6:
review of its
existing vacuum or suction dredge equipment regulations as ordered by the court, (b) the
department has transmitted for filing with the Secretary of State a certified copy of new
regulations, as necessary, and (c) the new regulations are operative. This bill would
modify that moratorium to prohibit the use of vacuum or suction dredge equipment until
June 30, 2016, or until the directors certification to the secretary as described
above, whichever is earlier. The bill would additionally require the director to certify
that the new regulations fully mitigate all identified significant environmental impacts
and that a fee structure is in place that will fully cover all costs to the department
related to the administration of the program."
The Senate (SB 98) and Assembly (AB 98) budget bills, which passed both houses on June 15, included the following language:
"The funds appropriated in this item shall not be used by the Department of Fish and Game for suction 3. dredge mining regulation, permitting, or other activities, except litigation and enforcement costs." Governor Brown vetoed this language:
A mineral claim is a valuable property right. By imposing a morratorium on the use of that property, the state has temporarily physically taken the property. Susch takings are subject to reimbursement of just compensation for the takings.
First English Evangelical Lutheran Church of Glendale v. County of Los Angeles, 482 U.S. 304; 107 S.Ct. 2378 (1987) temporary deprivations of use are compensable under the Takings Clause. "
The Suction Dredge Mining SDEIR
The Suction Dredge Mining SDEIR http://www.dfg.ca.gov/suctiondredge/
Final Request for Administration to Comply with Document Requests on Rewrite of Mining Rule; Click here to read the full letter.
South West Oregon Mining Association (SWOMA) Mining Law Learning Center
The Chaffee law of 1866 and the placer law of 1870 were combined into the General Mining Act of 1872. (See also) The mining law of 1866 had given discoverers rights to stake mining claims to extract gold, silver, cinnabar the principal ore of mercury and copper. When Congress passed the General Mining Act of 1872, the wording was changed to "or other valuable deposits," giving greater scope to the law.
The 1872 act also granted extralateral rights to lode claims, and fixed the maximum size of lode claims as 1500 feet 457m long and 600 feet 183m wide.
The Act of 1872 also set the price for land assumed under the mining act: FORTY-SECOND CONGRESS. Sess. II Ch. 152. 1872. 95 approved July ninth, eighteen hundred and seventy a patent shall issue for the placer-claim, including such vein or lode, upon the payment of five dollars per acre such vein or lode claim, and twenty-five feet of surface on each side thereof. The reminder of the placer-claim, or any placer-claim not embracing any vein or lode claim, shall be paid for at the rate of two dollars and fifty cents per acre, together with all costs of proceedings;. It set the price of the land claim to range .50 to .00 per acre. This price set by law has remained the same since 1872.
The acquisition of mining rights on public land in the West is mostly governed by the 1872 act. Subsequent changes to the law include:
- Timber and Stone Act, an 1878 law that allowed private purchase of minable government land;
- the Mineral Leasing Act of 1920, which made certain nonmetallic minerals, such as petroleum and oil shale, not open to claim staking;
- the Mineral Materials Act of 1947, which provides for the sale or public giveaway of certain minerals, such as sand or gravel;
- the Multiple Mineral Use Act of 1954, which provided for the development of multiple minerals on the same tracts of public land;
- the Multiple Surface Use Mining Act of 1955, which withdrew common varieties from mineral entry; and
- the Federal Land Policy and Management Act of 1976, part of which redefines claim recording procedures and provides for abandonment if the procedures are not followed.
- Since 1 October 1994 Congress has imposed budget restrictions which have prevented the Bureau of Land Management from accepting new applications for patents on mining claims.
Provisions of the 1872 Mining Law were changed with the implementation of the 1976 Federal Land Policy Management Act FLPMA effective as of January 1981. Many of the provisions of FLPMA revised the surface uses allowed on mining claims under the 1872 mining law by halting or restricting unnecessary or undue degradation of the public lands. The regulation portion of the FLPMA is found at 43 CFR 3809 "Surface Management regulations". These regulations were updated and the final rules published in December 2001. These rules effectively replace many of the 1872 Mining Law provisions and require mining reclamation, financial guarantees for reclamation to the Federal government, mining claim occupation permits and detailed Mining Plans of Operations to be submitted to the governing agencies before disturbing the surface.
The power and property right of the Mining Act
The Mining Act of 1872 is a unique law that vests an individual with the right to prospect and extract locatable mineral upon public lands. This right upon location, is a grant by Congress which carries with it a property right protectable by the Constitution (5th Amendment). This location is a severance from ownership from the
to a private party (subject to BLM validity exam) of a locatable mineral estate. This "location" or claim acts as a relinquishment of land by the U.S. United States to the private sector to perfect to full patent if the individual wishes.
The Mining Act of 1872 is a "Location System" and not a "discretionary grant system". As such, no executive branch agency such as the Forest Service or BLM can interfere, prohibit or encumber that right unless BLM performs a validity exam and voids the fraudulent claim upon public land.
The key point regarding the power to regulate from the Forest Service or BLM standpoint is that their actions are non-discretionary , unlike leasable lands covered under laws such as the 1920 Mineral Leasing Act. The Forest Service is prohibited from affecting the mineral estate by regulation (Transfer Act of 1905, 16 USC 472), or action (30USC 612(b)), namely because this authority was reserved in the Dept. of Interior for administration of all the laws as affecting the Mining Act. The BLM has the power to administer the Mining Act, but their role is still a non-discretionary one.
SB 657 Gaines
This bill would repeal prohibition on the use of vacuum or suction dredge equipment, and exempt the issuance of permits to operate vacuum or suction dredge equipment from the California
Environmental Quality Act until January 1, 2014.
Comments on the proposed rule 3/12 Armstrong
Comments on the California Department of Fish & Games (DFG) Suction Dredge Permitting Program Subsequent Environmental Impact Report (SEIR) and Proposed Regulations by Claudia Wise and Joseph Green, retired EPA scientists, 5/3/11; Small Scale Gold Suction Dredging and the Environment, Power Point Presentation by retired EPA scientist Joseph Greene, 12/8/07. The same folks targeting Klamath Dams and other resource users are trying to eliminate our mining industry.
June 13, 2007 Comment to the SWRCB on affects of suction dredge mining
Testimony before the CA Natural Reources and Water Committee on SB670 4/28/2009
Siskiyou County Gold Production
Siskiyou County Minerals
California Coastal Comm'n v. Granite Rock Co. 480 U.S. 572 (1987)
Karuk Tribe v. US Forestry Serv., 05-16801
Karuk Tribe v. CA DFG and associated cases
Tribe Fights to Have Feds Intervene in Mining
Socioeconomic Impacts of Suction Dredge Mining
Excerpts from Dam EIR/EIS cumulative effects comment
Pages 51- 54 are an excerpt from Chapter 4.6.2 of CA DFGs CEQA document concerning the economic impact of suction dredge miners. This quotes from a 1993 survey which indicates that the average investment in suction dredge equipment was approximately $6,000; that suction dredgers spent about $6,250 on expenses per year, including groceries, restaurants, motels, camp fees and other living expenses. It is further calculated that an average of 35 days per year was spent on dredging, equaling about $179 expenditure per day per miner. In addition, dredgers spend about $3,000 on gas, oil, maintenance and repair.
E-mail dated July 6, 2010 from Trista Parry of Parrys market Ms. Parry provides figures from her small grocery business in Happy Camp that reflect the impact of the loss of suction dredge miners since the moratorium of SB 670 was passed by the CA legislature last year. It shows a decrease of $11,467 in receipts for May 2010 and a loss of $58,739.42 for June of 2010. This is contrasted with the April 2010 receipts which show a modest increase in receipts of about $3,0000 to show that this is not due to the economic downturn.
SUMMARY COMMENT: Suction dredge mining occurs in the small, economically depressed communities of the
Klamath River. The small business dynamic for the grocery stores, convenience stores, cardlock gas, camp grounds and motels is to use summer tourist income to sustain the business in the rest of the season. The year-round local clientele is very small. The loss of dredge miners may result in the closing of vital local service stores along the Klamath. This would likely require residents to travel to Yreka to shop. In the case of the cardlock station, it is the only one on the Klamath River in . Siskiyou County