As most of you have probably heard by now, Governor Schwarzenegger signed Senate Bill 670 into law which has placed a statewide moratorium on suction dredging in California until the Department of Fish & Game (DFG) completes an updated Environmental Impact Report (EIR). This EIR process has already begun. Under the present schedule, public hearings will begin in November of this year. DFG is now projecting to complete the process by the fall of 2011. If they remain on schedule (unlikely, in my own opinion), this means we will miss two dredging seasons in California.
Just in case you didnât know, this new law only stops suction dredging within Californiaâs active waterways. It does not have anything to do with the other types of prospecting or mining that we do in California. Unaffected prospecting activities include panning, sniping & Vack-mining, sluicing & high-banking, booming, electronic prospecting and other types of prospecting that do not use a suction nozzle within an active stream, river or creek. It also does not affect our group weekend projects.
We are Immediately Implementing a 3-Pronged Solution for California Suction Dredgers
As we are not very good at sitting around complaining, here is what we are doing:
1) Participation in the Administrative Process: The EIR on suction dredging in California must be completed through a CEQA Process (California Environmental Quality Act); which, based upon best available science, requires the authorities to identify any important concerns. Then, those concerns must be addressed through implementation of regulations which are least-restrictive upon people and economic activity. This is not new to us, since we actively participated in the earlier EIR which was completed during 1994.
We have already lined up specialist-biologists on our team who are ready to participate as the process moves forward. Our lobbyists are already busy soliciting assistance from the friends we have in the California legislature. Hopefully, some of their aids will also participate in the process, helping us to keep things on a âfair and balancedâ approach and moving along towards completion as soon as possible. Our attorneys are continuing to pursue remedies in the Alameda Superior Court to help move the process along.
We will be actively involved with the Administrative process, pushing it towards completion while fighting to prevent unreasonable solutions (regulations) from being imposed upon our industry. Ultimately, if we do not overcome the new law (outlined in solution number 2 just below), completing the Administrative process is going to get dredgers back in the California waterways. We are right on top of this.
2) Challenging the New Law in Federal Court: In anticipation of the possibility that SB 670 might be signed into law, several months ago, we asked our attorneys to perform legal research to prepare ourselves for a challenge in federal court to overturn the new law. This new law is clearly flawed, and there is a reasonable chance that we can overcome it.
As always with legal matters, I have to try and present you with enough details to keep you informed, but not so much that we tip off our adversaries (who read every word published on every Internet forum having to do with mining).
To help with an explanation, here is a summary which our lead attorney has provided.
Even the U. S. Forest Service (USFS) is taking the position that the Mining Law, Organic Act and their own Section 228 regulations pre-empt the new California law. My sources are telling me that USFS will not enforce the new law and will continue to allow suction dredging on USFS lands. California may try to enforce it, but the USFS will not and will not accompany California officials in the field. My understanding is that USFS is taking the position that the U.S. Supreme Court case known as Granite Rock directs only reasonable state environmental laws “of general applicability” can apply to operations authorized by the Mining Law. It says that state or local regulations or laws “cannot say no” to mining activities on federal public or National Forest land that comply with the Section 3809 or Section 228 regulations, respectively. The Granite Rock case originated in California.
Under existing federal law, mining is the priority-use of the public lands. Regulations can only be imposed to lessen unnecessary impacts. Regulation cannot be used to prohibit mining. There is a lot of existing, controlling case law on this. Yet, without any proof that a single fish has ever been harmed by suction dredging in California under our existing suction dredge regulations, even while they continue to issue fish-kill licenses to millions of others, the State just passed a new law which declared suction dredging as âharmful,â and prohibits suction dredge mining until such time as the activity can be further studied with new regulations imposed upon our industry.
Our federal challenge will be to try and prove that a state does not have the authority to prohibit or impose unreasonable regulations upon mining on the public lands. The outcome of this challenge will most likely have an important impact upon mining in all of the states. So we must be very careful about what we do. If we win such a challenge, it is reasonable to expect all states to back off on all the unreasonable regulation of mining activity within their borders. Winning would solve a lot of problems for miners!
If we lose such a challenge, we can expect the states to step in with even more unreasonable regulations upon mining.
This leads me to the subject of how we will pay for a challenge of this new law in federal court. We need to have some certainty that there are enough supporters on our side who will help New 49′ers cover the costs. This, so we do not make the fatal mistake of starting a fight that we cannot finish!
Most of the industry manufacturers (and others) are supportive of a federal challenge. So we have been able to pull together a very substantial list of prizes for this new fund-raiser.
The donors of these prizes have authorized our office to automatically generate a ticket in your name for every $10 legal contribution we receive ($100 would generate 10 tickets, etc). There is no limit to the size or frequency of your contributions, or to the number of prizes you can win. The drawing will take place at our headquarters in Happy Camp on 9 March, 2012.
Legal contributions can be arranged by calling (530) 493-2012, by mailing to The New 49′er Legal Fund, P.O. Box 47, Happy Camp, CA 96039, or by clicking here:
Asking the ”federal supremacy” question in federal court will most certainly affect the future of all small-scale mining (and probably even large-scale mining) in America for the foreseeable future. In my view, the responsibility is too large to place on a single attorney who is being managed by just one or two people from the whole industry. It would wise to get more organizations and more specialists involved with this. With your support, we are ready to play. Our attorneys are as good as you can find! We would like to see other organizations also actively participate.
This fund-raiser is going to be the decision-maker concerning New 49′er active involvement in a legal challenge in federal court to California’s new anti-dredging law. We will make the decision based upon how much initial financial support that we receive from you guys.
Thanks for whatever you can do!
3) Working out Suction Dredge Opportunities in Oregon: Oregonâs annual suction dredge permit presently costs $25 per year for both residents and non-residents.
We have struck high-grade gold on our dredge sampling project along the Rogue River. You will be hearing much more from us during the next few months about how we intend to support our members who wish to operate your dredges in Oregon.
Meanwhile, as you know, we continue to have the best high-banking opportunities (anywhere) along the Klamath River in Northern California for members who prefer prospecting for gold above the water.