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SB 670 Ca dredge ban


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#1 old gold miner

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Posted 03 September 2009 - 03:45 AM

California politicians blunder angry-smiley-010.gif

It is absolutely established that a valid unpatented placer mining claim is in fact a Statutory Federal Grant of “private property” derived from 30 U.S.C. § 21-54. All unpatented placer mining claims situated in California are on federally owned lands, under jurisdiction of the USFS, or BLM. Otherwise none would exist, as federal land is the only place an unpatented mining claim can be initiated, and held.

As long as the Federal government retains title, the federal interest in providing free access to its own land in order to promote mining is sufficient to preempt any state law that fundamentally bans such use. Thus under standard preemption analysis any state legislation, or regulation that conflicts with this overriding federal purpose, must fail.

Under the Supremacy Clause, any state law that conflicts with a federal law is preempted. Gibbons v. Ogden, 22 U.S. 1 (1824). Any state legislation which frustrates the full effectiveness of federal law is rendered invalid by the Supremacy Clause" regardless of the underlying purpose of its enactors, Perez v. Campbell, 402 U.S. 637, 651-52, 91 S.Ct. 1704, 29 L.Ed.2d 233 (1971)

A conflict exists if a party cannot comply with both state law and federal law. In addition, even in the absence of a direct conflict between state and federal law, a conflict exists if the state law is an obstacle to the accomplishment and execution of the full purposes and objectives of Congress. Crosby v. Nat’l Foreign Trade Council, 530 U.S. 363, 372-73 (2000).

In determining whether a state law is a sufficient obstacle, the courts examine the federal statute as a whole and identify its purpose and intended effects and then determine the impact of the challenged law on congressional intent. State law can be pre-empted in either of two general ways. If Congress evidences an intent to occupy a given field, any state law falling within that field is pre-empted.

If Congress has not entirely displaced state regulation over the matter in question, state law is still pre-empted to the extent it actually conflicts with federal law, that is, when it is impossible to comply with both state and federal law, or where the state law stands as an obstacle to the accomplishment of the full purposes and objectives of Congress. California Coastal Comm’n v. Granite Rock Co., 480 U.S. 572, 581 (1987)

An 1998 8th Circuit Court of Appeals case revolving around near identical prohibitions on unpatented mining claims, wherein holders brought suit claiming that federal mining laws preempted ordinance prohibiting issuance of any new or amended permits for surface metal mining within area which included federal lands. Private landowner intervened to defend the ordinance.

The United States District Court for the District of South Dakota, Richard H. Battey, Chief Judge, 977 F.Supp. 1396, granted summary judgment for plaintiffs and enjoined the ordinance. Intervener appealed.

The Court of Appeals, Hansen, Circuit Judge, held that: (1) preemption claim was ripe, and (2) Federal Mining Act preempted ordinance. Affirmed; South Dakota Mining Association Inc v. Lawrence County, 155 F.3d 1005

The only locatable mineral on the majority of unpatented placer claims held under federal law is placer gold. Which is naturally concentrated in stream or river bed gravels, and usualy no where else in worthwhile amounts. The only economically viable means to profitably recover placer gold in stream or river gravel is by “suction dredging”.

Accordingly, suction dredging is the “Highest & Best Use” of placer mining claims.
As a matter of fact, it is only viable use, as no other mining method is practical, economical, or profitable.

When the only viable use of an unpatented placer mining claim is by suction dredging, arbitrarily prohibiting that use (even temporarily) effects a complete “taking” of all economic benefit the owner could derive from it, for the duration of the ban.

The Fifth Amendment to the United States Constitution, made applicable to state and local governments by the Fourteenth Amendment, prohibits the government from taking private property for public use without just compensation.

The California Constitution provides, "Private property may be taken or damaged for public use only when just compensation ... has first been paid to, or into court for, the owner." (Cal. Const., art. I, § 19.)

It is well established that just compensation… is the full value of the property taken at the time of the taking, plus interest from the date of taking. United States v. Blankinship, 9 Cir., 1976, 543 F.2d 1272, 1275.

Without doubt, S.B. 670 capriciously deprives thousands of families of their legitimate livelihood, and caused an immediate gross compensatory “taking” of valid existing rights, and compensable private property interests of considerable magnitude.

Neither the USFS, or BLM will enforce this state law, given that that federal statutes, and regulations preempt this suction dredging ban on unpatented placer mining claims situated on federal lands under their control in California. That clearly should give public notice the federal courts will most certainly, and quickly take the same position the USFS/BLM has.

The Treasury of the State of California will ultimately be held liable to pay compensable damages to all those effected, accruing from August 6th 2009 forward. Until at least the illegal ban on suction dredging unpatented placer mining claims is lifted, or if necessary overturned by appropriate federal court action.

Plainly, Senator Wiggins who introduced this Bill, all the legislature that voted for it, and even the Governor failed to have S.B. 670 analyzed for critical federal preemption flaws, or significant “takings” liabilities it would create.

It would seen astute on the part of the California legislature to limit state financial liabilities here by swiftly correcting this law, to effect only a suction dredging ban on fee simple lands in California, which federal law may not preempt.

If not corrected quickly, state coffers will needlessly expend precious funds in paying attorney fees, and costs attempting to delay the inevitable overruling of S.B. 670 illegal provisions in federal court. Involved compensatory damages could well approach $20,000,000 annually. If ignored, those applicable damages will certainly compound over time with interest, costs and attorney fees applied.

California politicians should ponder that the 3,200 other current California suction dredge permit holders, and approximately 21,000 other similarly situated owners of unpatented placer mining claims on federal lands in California will justifiably require compensation for their loss’s S.B 670 directly caused them.

Once all affected are joined in a class action, which will most certainly prevail.
Who do these politicians think will be billed for that compensation?
Without question, it will most certainly be the treasury of the state of California. Huh_anim].gif

~~~~~~~~~~~~~~~

"Under the mining laws a person has a statutory right, consistent with Departmental regulations, to go upon the open (unappropriated and unreserved) Federal lands for the purpose of mineral prospecting, exploration, development, extraction and other uses reasonably incident thereto." (See 30 U.S.C. § 21-54, 43 C.F.R. § 3809.3-3, 0-6).

Federal mining claims are "private property" Freese v. United States, 639 F.2d 754, 757, 226 Ct.Cl. 252 cert. denied, 454 U.S. 827, 102 S.Ct. 119, 70 L.Ed.2d 103 (1981); Oil Shale Corp. v. Morton, 370 F.Supp. 108, 124 (D.Colo. 1973).

This possessory interest entitles the claimant to "the right to extract all minerals from the claim without paying royalties to the United States." Swanson v. Babbitt, 3 F.3d 1348, 1350 (9th Cir. 19930).

16 U.S.C. § 481, Use of Waters: All waters within boundaries of national forests may be used for domestic, mining, milling, or irrigation purposes under the laws of the state wherein such national forests are situated or under the laws of the United States and the rules and regulations established thereunder.

"Uncompensated divestment" of a valid unpatented mining claim would violate the Constitution. Freese v. United States, 639 F.2d 754, 757, 226 Ct.Cl. 252, cert. denied, 454 U.S. 827, 102 S.Ct. 119, 70 L.Ed. 2d 103 (1981).

Even though title to the fee estate remains in the United States, these unpatented mining claims are themselves property protected by the Fifth Amendment against uncompensated takings. See Best v. Humboldt Placer Mining Co., 371 U.S. 334 (1963); cf. Forbes v. Gracey, 94 U.S. 762, 766 (1876); U.S.C.A.Const. Amend. 5; North American Transportation & Trading Co. v. U.S., 1918, 53 Ct.Cl. 424, affirmed 40 S.Ct. 518, 253 U.S. 330; United States v. Locke, 471 U.S. 84, 107, 105 S.Ct. 1785, 1799, 85 L.Ed. 2d 64 (1985); Freese v. United States, 639 F.2d 754, 757, 226 Ct.Cl. 252, cert. denied, 454 U.S. 827, 102 S.Ct. 119, 70 L.Ed. 2d 103 (1981); Rybachek v. United States, 23 Cl.Ct. 222 (1991).

A valid location, though unpatented, is a grant in the nature of an estate in fee and if such an estate is taken by the United States, just compensation must be made. See U.S.C.A. Const. Amend. 5, North American Transportation & Trading Co. v. U.S., 1918, 53 Ct.Cl. 424, affirmed 40 S.Ct. 518, 253 U.S. 330

Such an interest may be asserted against the United States as well as against third parties (see Best v. Humboldt Placer Mining Co., 371 U.S. 334, 336 (1963); Gwillim v. Donnellan, 115 U.S. 45, 50 (1885)) and may not be taken from the claimant by the United States without due compensation. See United States v. North American Transportation & Trading Co., 253 U.S. 330 (1920); cf. Best v. Humboldt Placer Mining Co.

For further information on federal preemption law, the internet link below gives a basic explanation.

http://en.wikipedia....eral_preemption
It is wise to listen twice as much as you speak. If mother nature had intended otherwise, she would have given you 1 ear & 2 mouths.

#2 GotGold

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Posted 03 September 2009 - 03:53 AM

Now this is very interesting even though wikipedia can be misleading, I need to look into this further. Thanks 'old gold miner' welcome to the forum!

Gary
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#3 Micro Nugget

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Posted 03 September 2009 - 04:47 AM

Hey Old Gold Miner -- where you been? No one in Disneyland North has thought through the logic of SB 670. How can F&G complete a study of something that now can't happen? As for Wiggins not having thought this through, now she's actually gone and wigged out -- literally. This doddering, knee jerk political hack recently announced that she will not seek reelection. Her handlers are having a fit trying to figure out who they next can manipulate into introducing even worse legislation. Harsh words, but rationality is a rare commodity in Sacramento these days.
Martin WSPA#5

Prospecting success, be it for HEARTS, TRUTH or GOLD, takes COURAGE and HONESTY to penetrate through the appearance of things, plus PATIENCE and FORTITUDE to work through the many layers of things of which both nature and human nature are composed.

#4 John Hoser Oates

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Posted 03 September 2009 - 05:49 AM

GREAT WRITING & STYLE-- REMINDS ME VERY MUCH OF TOM K. IN OREGONS STYLE.darn GOOD MAN. JOHN

#5 sonnysnewlife

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Posted 03 September 2009 - 05:54 AM

So with the project schedule looking like this:
Project Schedule
Public review of Initial Study and Notice of Preparation (including public scoping meetings) Winter 2009
Public review of Draft Supplemental Environmental Impact Report and regulatory updates (including public hearings) Late summer/early fall 2010
Final Supplemental EIR and regulatory updates Spring 2011
File Notice of Determination and CEQA Findings Late spring 2011

A claim holder would first have to establish what the take would have been during that time and with relation to the current market value during that time, estimate the loss of earnings, plus interest. Is that right? This is regardless of the outcome of the findings. Is that also correct?
I guess I am also wondering if time spent on an individuals claim would determine how much product (gold) would be found as in a weekend venture or a daily venture. How could that be established? Also, if the amount of product found, is determined by the amount of time spent on a given claim, would it not be detrimental to the individual claim holder to join a "class action lawsuit", as the original RSS feed of this post hints too?

I have attached the link on the original posting: http://bluelivingide...rs/#comment-710
Thanks in advance for any information.

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#6 El Dorado

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Posted 03 September 2009 - 08:01 AM

Good post... much of above is the backbone to the pending lawsuit from PLP vs California RE: SB670
El Dorado

#7 old gold miner

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Posted 03 September 2009 - 01:12 PM

Endangered Species Act Finally Meets the Fifth Amendment

By: M. David Stirling
“nor shall private property be taken for public use, without just compensation.”
Fifth Amendment of the Constitution

Last December, the Bush administration quietly settled a landmark lawsuit involving a federal trial court judgment that the government’s enforcement of the Endangered Species Act had violated the constitutionally-protected property rights of farmers in California’s Central Valley. The judge had ordered the government to pay $26 million in damages, including interest, for the undelivered water — under the settlement, the government agreed to pay $16.7 million. Even though settlement of a trial court judgment is not precedent-setting (only appellate court decisions establish precedent), we now have, for the first time since ESA became law, a court ruling that government’s ESA enforcement triggers the Fifth Amendment’s “just compensation” provision.

In the 31 years since the Endangered Species Act became law, owners denied use of their property through its enforcement have filed numerous lawsuits charging the government with taking private property for public use (I.e., species protection) and seeking “just compensation” under the Fifth Amendment. Their claims seem clearly to be supported by the Act itself. Congress declared in its “findings” incorporated into the ESA — Section 2(a)(3) — that endangered or threatened “species of fish, wildlife, and plants are of aesthetic, ecological, educational, historical, recreational, and scientific value to the Nation and its people.” Yet, despite this unambiguous statement of ESA’s purpose as serving a “public use,” no federal agency and no federal court — until now — has ever recognized ESA enforcement as serving a public use, or that the regulation of private property under ESA is a “taking” under the Fifth Amendment, or that the government should pay damaged property owners “just compensation.”

At the heart of this case (Tulare Lake Basin Water Storage District v. United States) is the federal government’s Central Valley Water Project and California’s State Water Project — the natural and man-made systems of dams, reservoirs, pumping stations, and aqueducts that transport water from Northern California through the Central Valley to Southern California. For nearly 50 years, the federal and state water projects have contracted with locally-created water districts in the agriculture-based Central Valley to distribute the water to hundreds of farmers to irrigate their crops. Under these contracts, the water districts collect the farmers’ payments for the water they use and forward the payments on to the federal and state governments.

During drought conditions in 1992, the National Marine Fisheries Service determined that continued distribution of water from the federal and state water projects to water districts and Central Valley farmers for irrigation was threatening the survival of the winter-run Chinook salmon and the delta smelt. Based on that determination and the established presumption that ESA was to be enforced “whatever the cost,” the federal and state water projects, for the next three years, halved the annual water allocation to the districts and farmers, and doubled the annual charge the districts and farmers paid for the water.

The water users filed suit against the federal government alleging that the reduction of water was a “taking” of private property under the Fifth Amendment that entitled them to compensation for their losses caused when the water was not delivered. The court ruling that the federal government had taken the water districts’ and farmers’ property stated:
The Fifth Amendment to the United States Constitution concludes with the phrase: “nor shall private property be taken for public use, without just compensation.” The purpose of that clause is [quoting a U.S. Supreme Court decision] “to bar Government from forcing some people alone to bear public burdens which, in all fairness and justice, should be borne by the public as a whole.” ... The federal government is certainly free to preserve the fish; it must simply pay for the water it takes to do so.
In the debate over ESA between the defenders of private property rights and those who advance the dominant power of government, the champions of individual rights argue that even though Congress preserved fish, wildlife, and plant species for everyone’s benefit, I.e., “for public use,” ESA enforcement leaves individual property owners with species-preservation losses uncompensated, forcing them to pay disproportionately for a program benefitting everyone. Under the Fifth Amendment, they say, public tax revenues should compensate them for their losses.

Although this argument may seem straightforwardly persuasive, even uncontroversial, it runs directly against the entire history of ESA enforcement. That is what makes the trial court ruling and the Bush administration’s settlement so important.

Congress’s enactment of the Endangered Species Act in 1973 authorized “the use of all methods and procedures which are necessary” to restore and preserve endangered or threatened species. The first Supreme Court decision to consider ESA — Tennessee Valley Authority v. Hill (1978) — held that Congress designed the act to “halt and reverse the trend toward species extinction, whatever the cost” (author’s emphasis). From that time on, ESA has been enforced by the U.S. Fish and Wildlife Service and the National Marine Fisheries Service, and interpreted by federal courts, as the nation’s most dominant and least assailable federal statute. (While courts have ruled even parts of the 9/11 Patriot Act unconstitutional, they have fully upheld and consistently enforced the provisions of the ESA for more than 30 years.)

Under ESA, when federal enforcement agencies “list” a species as endangered or threatened, or designate land as “critical habitat” for a species, an affected property owner whose activity deliberately or accidentally harms the species or its habitat is subject to civil or criminal penalties, including heavy fines and even imprisonment. Furthermore, neither Fish and Wildlife nor Marine Fisheries will grant property owners permits to improve or modify land designated as habitat without imposing burdensome conditions and costly mitigation procedures. Because of these heavy burdens hanging over property owners, California’s 200 ESA-protected species of fish, wildlife, and plants (second only to Hawaii’s 300 protected species) have effectively rendered millions of acres of privately-owned land largely unusable by the owners.

The environmental activists, government environmental enforcement bureaucrats, and elected officials who drive the “species-first, people-last” agenda, have been largely successful in court for more than 30 years in keeping ESA enforcement out from under Fifth Amendment protections of individual rights. It was no surprise that they opposed the Bush Administration’s Tulare Lake Basin settlement, urging instead that the Administration appeal the court’s judgment. Even Senator Diane Feinstein expressed concern that a precedent requiring the government to pay property owners for losses they suffered due to government-imposed environmental regulation “would vastly increase public expenditures.”

Their real concern is that neither government funds nor taxpayer patience exist in sufficient supply to pay private property owners every time the federal government “takes” property under the ESA. They fear the government will have to moderate, i.e. balance, its regulatory enforcement approach so that people’s lives, livelihoods, and property rights receive as much consideration as the species.

Thomas Jefferson foresaw the coming of laws like the ESA when he warned that “the natural progress of things is for liberty to yield and government to gain ground.” With that in mind, the framers of the Constitution and Bill of Rights strove mightily to give “We the People of the United States” lasting protection from government domination. More than 200 years later, this “natural progress” of government to take power from the people has proven to be a relentless aggressor, justifying Jefferson’s warning and the Founding Fathers’ efforts to mitigate what James Madison called “the abridgement of the freedom of the people by gradual and silent encroachments of those in power.”

It is difficult to say whether the Bush Administration settled in Tulare Lake Basin to avoid the binding precedent an appeal might have brought or because the Administration agreed with the court’s ruling. But whatever the reason, new ground has been broken, and the federal government’s heavy-handed enforcement of the ESA may become more “people-friendly.”

M. David Stirling is vice president of Pacific Legal Foundation PLF’s brief in the Tulare Lake Basin case urged the Fifth Amendment rationale the Court adopted in its judgment. This article appeared in the March/April 2005 edition of California Political Review.
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#8 sonnysnewlife

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Posted 03 September 2009 - 01:35 PM

QUOTE (old gold miner @ Sep 3 2009, 01:12 PM) <{POST_SNAPBACK}>
Endangered Species Act Finally Meets the Fifth Amendment



Thomas Jefferson foresaw the coming of laws like the ESA when he warned that “the natural progress of things is for liberty to yield and government to gain ground.” With that in mind, the framers of the Constitution and Bill of Rights strove mightily to give “We the People of the United States” lasting protection from government domination. More than 200 years later, this “natural progress” of government to take power from the people has proven to be a relentless aggressor, justifying Jefferson’s warning and the Founding Fathers’ efforts to mitigate what James Madison called “the abridgement of the freedom of the people by gradual and silent encroachments of those in power.”


And there are detractors of the Constitution that dispute or totally ignore our rights under the Constitution. One of our main problems right now, is that the citizens of the United States, do not have a Thomas Jefferson or James Madison as their champion. We have citizens that stand up for their rights and are called "astroturf" or "Nazi's". We as a nation, need a Champion that will take us down a path that is neither left or right. A path that is centered in what is good for everyone.

Both Rush and Glenn are right.
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#9 old gold miner

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Posted 03 September 2009 - 02:45 PM

TRUTH REVEALED

YOU GO GIRL whoopie.gif

~~~~~~~~~~~~~


Truths about Dredging and effects on Fish Habitat
The Honorable Governor Arnold Schwarzenegger
State Capitol Building
Sacramento, CA 95814
Fax: 916-558-3160

Dear Governor Schwarzenegger,

PLEASE VETO BILL SB670 (anti-suction dredging legislation)

My name is Claudia Wise; I retired in 2006 after 32 years of civil service with the U.S. EPA as a physical scientist/chemist. I have been a member of many scientific projects over the years starting my federal career in the Fish Toxicology arena and ending it with the Salmon Restoration division. I have worked on projects ranging from urban fish populations and fish avoidance testing to eelgrass habitat and global climate change. I have been and remain to be a strong proponent of protecting the environment.


On October 11, 2007 in regards to AB 1032 I wrote to you regarding another attempt by the legislature to get around a court order and unnecessarily put a large group of miners and businesses out of work with no scientific evidence to support their claims.


Dozens of peer-reviewed journal articles some commissioned by the USEPA, USGS, CDFG, Corp of Engineers, and many more from universities support suction dredging as having de minimis effects or no significant effect on the environment they are used in. Nothing has changed in peer-reviewed literature since that time to change this fact.


Suction dredge mining has little impact on the areas fish and biota. In relation to natural occurrences suction dredge mining is insignificant. To put the impact of suction dredge mining into perspective it was calculated that suction dredge mining disturbs only 0.7% of the sediment that is moved naturally in a year. The Siskiyou National Forest (SNF), where this study occurred, is a very prominent mining area in California.


According to the U. S. Forest Service, SNF, "There are 1,092,302 acres on the Siskiyou National Forest. Using a factor of 0.33 cubic yards per acre per year times 1,092,302 acres will produce a very conservative estimate that 331,000 cubic yards of material move each year from natural causes compared to the 2413 cubic yards that was moved by suction dredge mining operations in 1995. This would be a movement rate by suction dredge mining that equals about 0.7% of natural rates." (Cooley 1995).

California Department of Fish and Game already regulates the miners out of the waterways during important life events for the Salmon. That includes during spawning season when redds are present.

It is well known that suction dredging causes little or no environmental harm to fish and biota what many overlook are the many benefits that dredging provides such as increased spawning gravels, dredge made refugia, and yes, mercury remediation to name a few.


Suction dredging breaks up cemented riverbeds providing fish with loose gravel for future spawning grounds in areas fish presently are not able to use for spawning. Between 1996 and 1998, Quihillalt (1999) found 4% of redds where located on or within 1000 m of dredge tailings. He theorized that dredge tailings may be attractive sites for redd construction because tailings are often located near riffle crests where fish frequently spawn, and they provide loose, appropriately sized substrate. However, embryos in tailings may suffer high mortality during years of high river flows (1998) and be of no concern during years of low river flows (1996 & 1997).

During a later survey on the Klamath River during 2002 only one redd was observed on suction dredge tailings. Recreational suction dredge mining was present throughout the survey from the Highway I-5 Bridge to Happy Camp (Schuyler and Magneson. 2006).


Even with scouring effects to redds reported in scientific literature this gravel provides areas to spawn that would not otherwise be available to them. Any added benefit to increasing salmon productivity, using suction dredging, is a benefit to fish numbers. Even during years of high mortality due to high flow events if only a few of the embryos survive that may be more than would be expected without the benefit of added spawning gravels provide by the tailings.


I have been involved in temperature surveys on the Klamath River in California in regards to suction dredge activity and existing conditions of refugia. We have found natural refugia to be no better in many cases to that of dredge made refugia.


Dredge holes can provide a holding place for fish as they pass up the waterway on their migration path to and from the ocean providing a place to get out of the faster currents to rest. Some of these dredge holes may also be cooler due to ground water seepage if the holes are deep enough. This leads to development of additional areas of needed refugia.


Another Benefit the suction dredge community could provide the state with is mercury remediation. In talking with miners, the majority typically do not run into large pools or hot spots of mercury. However, their concerns for the environment is the same as other citizens. Miners have shown the willingness to hand over collected mercury to a collection facility if such a facility exists. The California State Water Board’s Water Quality Division report (Humphreys, 2005) suggested the idea of paying the miner’s for their efforts would help facilitate this plan. Collection facilities have been provided in the past with great response.


The California Water Board has spent a lot of time and money on mercury remediation projects with limited success, though in 2001 EPA Region 9 located in San Francisco, California did collect mercury from miners very effectively. Collections of mercury has been happening in Oregon and Washington through the states respective Division’s of Ecology and with even greater success at miner’s rallies.


Even though EPA Region 9 has ended this program and removed it's existence from the website EPA, Region 9 had a mercury "milk run" in 2000. Agency personnel were able to collect 230 pounds of mercury from miners and local dentists. The total amount of mercury collected was equivalent to the mercury load in 47 years worth of wastewater discharge from the city of Sacramento's sewage treatment plant or the mercury in a million mercury thermometers. (US EPA, 2001.)


Over the past four years, the Resources Coalition and other small-scale miners associations in Washington have turned in 127 pounds of mercury and eight pounds of lead for safe disposal with the help from the Washington Department of Ecology. Ecology staff attended miners' rallies in Oroville and Monroe, explaining the state's program for proper disposal of lead and mercury. (ENS 2007).


The mining community of today is, in my opinion, the only group that is in a position with the technology to help with the removal of lead and mercury at a very economical price to the public. Any residual mercury remaining after dredging is that much less to worry about residing in our Nations waterways.


In reviewing Humphrey's (2005) comments regarding possible problems associated with collecting mercury via suction dredging methods, it is right to look to the suction dredge community for help locating hotspots and removing mercury from the river systems. In my opinion the data provided in the report by Humphrey's (2005) did not demonstrate any clear conclusions that would prohibit the State from allowing this activity. On the contrary, in the discussion of results it was stated that a suction dredge in the American River was able to collect 98 percent of the measured mercury processed through the dredge. The amount of mercury collected may have been higher if the investigators had been using a dredge with the modern jet flare design. Even 98 percent is a huge plus for the environment and it would be irresponsible to not allow mercury to be removed from the rivers and streams whenever it is found.


In Humphreys report (2005), the author expressed concern for the loss of a small portion (2%) of the mercury from the back end of the sluice box. In the conclusions it was stated that the amount lost constituted a concentration more than ten times higher than that needed to classify it as hazardous waste. Yet 98 percent of the mercury was now secured and the process did not add any mercury to the system that was not already present. The small fraction lost, because of its density, would relocate back onto the river floor buried in the sediment close to where it was removed while dredging.


Mercury is continuously moved every winter in high storm events. Since the cessation of hydraulic mining, accumulated sediment from hydraulic placer mining has been transported to the Sacramento–San Joaquin Delta and San Francisco Bay by sustained remobilization (James, 1991). Providing a program to collect mercury from miners would aid the Water Board’s mission of reducing mercury contamination in the deltas and bays where mercury methylation is a large concern.


In the test described by Humphreys (2005) a small portion of floured mercury was collected in the sediments as it escaped the sluice box. This mercury whether floured before it entered the sluice box, or not, would still be in elemental form. Regardless of surface area it would be no more toxic then the other 98 percent that was suggested to be left in place.


Aside from grossly polluted environments, mercury is normally a problem only where the rate of natural formation of methyl mercury from inorganic mercury is greater than the reverse reaction. Methyl mercury is the only form of mercury that accumulates appreciably in macroinvertebrates and fish. Environments that are known to favor the production of methyl mercury include certain types of wetlands, dilute low-pH lakes in the Northeast and North central United States, parts of the Florida Everglades, newly flooded reservoirs, and coastal wetlands, particularly along the Gulf of Mexico, Atlantic Ocean, and San Francisco Bay (USGS 2000).


If not collected the mercury is guaranteed to end up farther down stream, and eventually in the delta or the bay, where methylation is a real environmental problem. In my opinion it would be a highly irresponsible management practice to leave a large portion of mercury in the rivers and streams because of unrealistic concerns for the lesser amount moving only a short distance away from an operating dredge. Most likely if floured the movement of fine mercury would extend no farther than 50-feet off the end of the sluice box. That would relate to the distance a turbidity plume might extend downstream from a small-scale suction dredge.


However, if the mercury was left in place the next storm event would surely move it downstream closer to, and eventually into, the bay and delta. In fact, according to Humphrey's study in 2005 mercury was seen moving down stream and re-deposited on bedrock already dredge cleaned. The important fact here is mercury was flowing down stream in a suction dredge free zone during lower river flows than what take place under high winter river conditions.


It is most important to reduce the total amount of mercury in the streams and rivers and its transport downstream into the bays and deltas. This is defined as a part of Total Maximum Daily Load (“TMDL”) goals.


We know for certain that mercury is transported downstream throughout the winter season during high water events. Therefore, anytime there is the possibility for the removal of mercury by miners it should be undertaken and supported.


You justifiably vetoed that last bill because it was unnecessary and suction dredge mining is already regulated by the Department of Fish and Game. But here we are again….


There was no reason, last year, to sign AB1032 into law and there is no reason to sign Bill 670 into law this year. I respectfully ask that you not add further to the problems related to increased government regulation where none is warranted. Please allow California Fish and Game to do their job. They are already regulating suction dredging adequately to protect fish. The court has ordered California Department of Fish and Game to prove suction dredging creates significant harm before changing the mining regulations.
I respectfully ask that you VETO bill 670.

Sincerely,


Claudia Wise

34519 Riverside Dr SW

Albany, Oregon 97321



REFERENCES

Cooley, 1995, USFS. Siskiyou National Forest Service Yardage Estimate, A comparison of stream materials moved by mining suction dredge operations to the natural sediment yield rates. In house Report.

Environment News Service (ENS). 2007. Miners Remove Gold Rush Mercury from Washington Streams.

http://www.ens-newsw...7-09-18-096.asp

Grove, Schuyler and M. Magneson. 2006. USFWS. Arcata Fish and Wildlife Office, Mainstem Klamath River Fall Chinook Salmon Spawning Survey.

Humphreys, R., 2005, Losses and Recovery During a Suction Dredge Test in the South Fork of the American River. Staff Report, State Water Resources Control Board, Division of Water Quality.

James, A.L., 1991, Incision and morphologic evolution of an alluvial channel recovering from hydraulic mining sediment: Geological Society of America Bulletin, v. 103, p. 723–736.

Quihillalt, Rick R and J. D. Glase., 1999. USFWS. Arcata Fish and Wildlife Office, Mainstem Trinity River Fall Chinook Salmon Spawning Redd Survey, 1996 through 1998. In house Report.

USEPA, 2001. Mercury Recovery from Recreational Gold Miners.
http://www.epa.gov/r...ons/merrec.html

USGS, 2000. Mercury in the Environment, USGS Fact Sheet 146-00 (October 2000) Environments Where Methyl mercury is a Problem.

It is wise to listen twice as much as you speak. If mother nature had intended otherwise, she would have given you 1 ear & 2 mouths.

#10 Terry Soloman

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Posted 03 September 2009 - 03:21 PM

Great letter! Where did it come from / where did you find it? - Terry

#11 old gold miner

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Posted 03 September 2009 - 04:15 PM

QUOTE (Terry Soloman @ Sep 3 2009, 03:21 PM) <{POST_SNAPBACK}>
Great letter! Where did it come from / where did you find it? - Terry


If you mean the one that started the thread, it was part of a letter I wrote to:

Governor Arnold Schwarzenegger
State Capitol Building
Sacramento, CA 95814

Edmund G. Brown Jr.
Attorney General’s Office
California Department of Justice
P.O. Box 944255
Sacramento, CA 94244-2550

Bill Lockyer
State Treasurer's Office
915 Capitol Mall, Suite 110
Sacramento, CA 95814

August 31, 2009

RE: Compensable “taking” possibly in excess of $20,000,000 annually caused by S.B. 670 for which the State will be liable if the law is not corrected without delay.

Dear Sirs:

I, and my extended family own unpatented placer gold mining claims situated on federal lands within the State of California. Combined, we have an investment in these placer mining properties, suction dredges, and associated support equipment in excess of $100,000.

In these trying economic times, several family members became unemployed from their normal occupations. To survive though this stark recession, several turned to suction dredging full time. From which they derive enough income to support their families, without drawing unemployment, welfare or food stamps from the state.

I was stupefied to find the Governor signed S.B. 670 into law August 6th 2009. Which arbitrarily halts all placer gold suction dredging on unpatented placer mining claims throughout the State of California for an indefinite unspecified period of time.

(then continues on as first posted at the beginning of this thread).

If you mean the 2nd letter, just above your post?

You can thank Pat Keene for making it available.

Below is another letter Claudia authored.

http://www.swrcb.ca....wise_062207.pdf

A few more of my feeble insights:

The impetus to “suction dredge” is spurred on by the per ounce price of gold. Today’s gold prices are at historical highs. Given the profound economic recession, exceptionally high unemployment, near $1000 per once price of gold today, suction dredging has increased dramatically as a primary livelihood for many. As most ordinary men can purchase, and operate one. Reality is, there is no such thing as “recreational mining”, when individuals owning unpatented placer mining claims make a sustainable livelihood from it.

Obviously, since the gold rush days, every nook & cranny of dry ground in California has been scoured for placer gold, and most mined out. Because, that was the easiest gold bearing gravel to mine, with the technology available back then. Things changed around 1960 onward, when affordable efficient light weight portable gas powered suction dredges that 1 or 2 men could operate came into play. Which did not exist prior to that.

Meaning that with few exceptions, suction dredging is the only viable means to recover placer gold the previous generations of California gold miners did not, or could not recover. Which should establish that placer mining via “suction dredging” to recover gold is the primary economic expectation all placer mining claim owners have, and to extinguish that fundamental attribute of ownership effects a “taking“ of all the valid existing rights they hold. As , they hold nothing else, except the right to mine an unpatented placer claim.

The author of SB 670 insists the bill doesn’t “take” enough to be a “compensable taking. Senator Wiggins is both impractical, and wrong. Most placer claims in California cannot be economicaly mined by any other means than suction dredging. As doing so, if by the slim chance they have suitable reserves amenable to larger scale operations requires heavy earth moving equipment, wash plants, settling ponds, very substantial investment, extensive lengthy permitting, and reclamation bonds. All of which is most often far beyond the means of ordinary people, who can afford to suction dredge.

LOL, anyone note todays gold price ROFL.gif

http://www.kitco.com...s/livegold.html

I would wager, amongst other things, as the true effect of the federal governments massive existing deficit & continued run-a-way deficit spending hits home against the US dollar.

We may see $2000 per ounce gold in the not far distant future.
It is wise to listen twice as much as you speak. If mother nature had intended otherwise, she would have given you 1 ear & 2 mouths.

#12 Steve Herschbach

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Posted 05 September 2009 - 03:56 PM

Hi,

There are times when I will admit I'm a "recreational miner". I'm heading down to Crow Creek tomorrow and am going to pay them $20 to screw around for the day and find a little gold. If I only find $10 in gold I won't care. I'm just going to go for the fun of it.

But when I get a mining claim the game changes. Anyone who owns a claim is by definition in the mining business, plain and simple.

Now I'm in Alaska, thank God. But if I owned a claim in California for the express purpose of dredging I'd be suing so fast it would make head's spin. Sure, you can always find some "expert" who claims dredging is a problem. But the are plenty of studies that all have come to the same conclusion - that dredging impacts are localized and of short duration. My favorite is the EPA study at http://www.akmining....ine/1999epa.htm Now, we are talking the federal Environmental Protection Agency, not known for being a pro-mining organization.

So if I have a federal claim in California and an EPA study that says what I'm doing is OK and some state legislature tries to prevent me from mining my claims I'm suing, end of story. If they want to do a study, then the study should have to be done first, and serious evidence presented first that showed there was a problem before banning anything.

More to the point, not every bit of water in the state supports a salmon population. How do they justify banning dredging on all streams? Somebody with a federal claim on a stream with little or no fish in it should go after these clowns asap.

More studies at http://www.akmining.com/mine/study.htm

Steve Herschbach

#13 El Dorado

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Posted 05 September 2009 - 05:15 PM

As I Have stated numerous times, this has nothing at all to do with the science behind dredging and fish populations. It is about the politics of Indians in California. Now that they have the State in their back pockets via gaming, they will surely win any issue in this state.


El Dorado

#14 old gold miner

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Posted 05 September 2009 - 05:22 PM

Apply common sense:

Environmental zealots claim that small scale suction dredging to recover placer gold is harmful to, and kills indigenous fish.

Fact: Numerous unbiased scientific studies on the subject clearly show the effects of small scale suction dredging has a “de minimis” impact, meaning no discernable, or extremely minimal effect on fisheries.

http://www.icmj.com/...redge-study.pdf

Fact: Prior to the passage of SB 670 (which illegally bans all suction dredging state wide) suction dredging throughout California was strictly prohibited in waterways during fish spawning seasons, to further minimize any possible negative impact.

Environmental zealots who sponsored SB 670 used biased propaganda (rather than sound scientific evidence) to gain support for SB 670 from California sports fisherman. Who threw consider political weight behind SB 670.

:REALITY CHECK:

> sports fishing KILLS fish <

California politicians appear to believe that its perfectly proper for approximately 3 million California fishermen to kill fish as a leisure sport. Assuming each fishermen catches a few, the fish kill in California waterways directly attributable to sports fishing alone amounts to many millions annually.

:MORE REALITY CHECK:

> Hydroelectric dams throughout California are known to KILL fish<

>Draw downs of water flow for agricultural irrigation is known to kill fish<

>Runoff from agricultural fertilizers & pesticides is known to kill fish<

>Commercial fishing kills fish<

>Industrial pollution is know to kill fish<

The aforesaid are primary causes of fish habitat degradation & fish kills, amongst the many other factors known to kill fish

Not one single fish has ever been known to have been killed attributable to the 3, 200 California suction dredge permit holders

To BAN all suction dredging in California to determine it’s effect on indigenous fish is ludicrous, capricious & illogical

Numerous credible unbiased scientific studies of the effects of small scale suction dredge gold mining have been performed by various state & federal agencies in the last three decades, throughout Alaska & the western United States.

Rather than Ban suction dredging in California for an indeterminate amount of time, to perform an independent environmental study report, at great cost.

If the California DF&G were competent?

They could easily, and quickly compile those credible reports from all applicable state & federal agencies. Then draw fair unbiased scientific conclusions from them. Which, without doubt would show suction dredging has a “de minimis” impact, legally meaning no discernable, or extremely minimal effect on fisheries.

To perform an independent lengthy environmental study, at considerable taxpayer expense. When numerous credible studies of the same subject already exist.

Is a clear unequivocal illogical WASTE of taxpayers funds.

Moreover, the ban on suction dredging SB 670 implements will without doubt, be rapidly be overturned in Federal court. Because such law is plainly preempted by statutory federal law.

Again, in attempting to defend illogical, and illegal state actions, politicians of California will most certainly compound their errors, and waste more taxpayer dollars.


http://www.swrcb.ca....om_chambers.pdf


http://www.akmining....ine/fsyards.htm


http://www.recminer....onal_mining.htm


http://afsjournals.o...4...DO>2.0.CO;2


http://afsjournals.o...ournalCode=fima

It is wise to listen twice as much as you speak. If mother nature had intended otherwise, she would have given you 1 ear & 2 mouths.

#15 Mightyb

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Posted 05 September 2009 - 05:58 PM

Old Gold Miner

Wow, now your talkin. Great job thanks for the post.

ScottC.

#16 sonnysnewlife

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Posted 05 September 2009 - 06:32 PM

QUOTE (El Dorado @ Sep 5 2009, 05:15 PM) <{POST_SNAPBACK}>
As I Have stated numerous times, this has nothing at all to do with the science behind dredging and fish populations. It is about the politics of Indians in California. Now that they have the State in their back pockets via gaming, they will surely win any issue in this state.



El is right though, although the reasons they give may be enviromental.......its politics pure and simple. Sieze and control. Its the California way.

Both Rush and Glenn are right.
I AM LEGION

#17 Steve Herschbach

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Posted 05 September 2009 - 09:16 PM

Hi,

I agree with El, and politicians are easy enough to buy. But once you go to court you have to prove your case, and old gold miner is spot on. If the EPA says dredging is OK then a judge is going to have a hard time saying otherwise. If one does, he or she is likely to be overruled on appeal. In most cases the rulings must be based on good science.

But it is never a given. Our system is ok but like everything human it is flawed.

Steve Herschbach

#18 John Hoser Oates

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Posted 06 September 2009 - 05:41 AM

The court in Alameda county has already ruled we are guilty till proven innocent CONVENIENTLY at the same exact day/time the state legislature was passing SB670. The courts have ALREADY FAILED AND CUT OUT THROATS EAR TO EAR. And the Spermanator didn't help with his signature either folks. John

#19 Steve Herschbach

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Posted 06 September 2009 - 10:19 AM

Hi John,

Good thing the court in Alameda county is not the highest court in the land. It is not over yet.

Steve Herschbach

#20 old gold miner

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Posted 06 September 2009 - 11:47 AM

QUOTE (Steve Herschbach @ Sep 6 2009, 10:19 AM) <{POST_SNAPBACK}>
Hi John,

Good thing the court in Alameda county is not the highest court in the land. It is not over yet.

Steve Herschbach



YA whoopie.gif GOT THAT RIGHT............. woohoo.gif
Sooner than later a federal court action will trump these idiots. bowdown.gif




It is wise to listen twice as much as you speak. If mother nature had intended otherwise, she would have given you 1 ear & 2 mouths.




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