SECOND QUARTER, APRIL 2011 VOLUME 25, NUMBER 4
In March, we reported that Oregon State Senator Atkinson had just introduced Oregon Senate Bill (SB) 765, which would have taxed suction gold dredgers an additional $50 annual fee for in-state dredgers and an additional (whopping) $2,500 fee for non-resident dredgers for each county where the prospector intended to dredge!
Under emergency status, the bill was moving on fast-track through the Oregon legislative process. If passed, these unreasonable fees would have been in affect for the upcoming season!
As soon as we found out that the bill was being considered by the Judicial Committee in the Oregon Senate, we fired off an Alert to our entire Action Email list with a request that each member of the Committee be contacted. Other prospecting associations in Oregon also energized their members into action. And it only took two days for Senator Atkinson to withdraw his hateful bill from this year’s legislative session!
My understanding is that the coordinated response from the mining community completely quashed viable support for this bill within a matter of hours! I only wish we could have this kind of impact in California! In any event, I want to thank everyone who helped with this successful effort, and we should all give ourselves a nice pat on the back for winning an important battle.
This means the Oregon dredge permit will remain at $25 (even for nonresidents) for this next season. But we need to keep our guard up, because anti-mining activists are not likely to give up. In a published statement by Senator Atkinson, he makes his intention clear that he wants to keep non-resident prospectors out of Oregon. By the way, Senator Atkinson migrated to Oregon from California! How does that make you feel?
Because results are so fast, the Internet is the only effective way to drive most political action these days. If you are interested in getting on our Action Email List, you do so by clicking on the Free Internet Newsletter link at the bottom-left of our home page.
We Have Defeated the Karuk’s Appeal in the 9th Circuit!
It is nice to win on the big things!
We just had another exciting win in a continuation of the Karuk Tribe’s long-attempted challenge of the U.S. Forest Service (USFS) regulation which allows prospecting or mining under a Notice of Intent (NOI) when the activity does not create a substantial disturbance of surface resources.
The 9th Circuit overruled the Karuk’s argument that a USFS Ranger’s decision to allow mining under a NOI amounted to an action that required additional consultation with other federal agencies, which would have created substantial delays before the prospecting or mining activity could proceed.
I asked our own attorney, James Buchal, who was the only council present that was arguing on behalf of the mining industry, to write a short summary. Here it is:
“On April 7, 2011, the United States Court of Appeals for the Ninth Circuit affirmed a California district court’s rejection of the Karuk Tribe’s attempt to snarl any and all suction dredge mining in cumbersome interagency consultation processes under the federal Endangered Species Act. The case concerned the legal significance of miners sending notices of intent to the U.S. Forest Service under the Forest Service’s 36 C.F.R. Part 228 regulations. The Forest Service had reviewed notices of intent from The New 49’ers and others, and advised those giving notice that no plan of operations would be required. The Karuk Tribe contended that the district rangers’ review of such notices made the mining ‘agency action” that required consultation with the National Marine Fisheries Service and/or U.S. Fish and Wildlife Service pursuant to section 7 of the Endangered Species Act.
Two of the three Ninth Circuit judges (Milan Smith, the brother of former Oregon Senator Gordon Smith and James Todd, a senior district court judge from Tennessee) determined that the Forest Service’s review of such notices did not make the mining ‘agency action” subject to the consultation requirement. Simply put, the majority determined that the Forest Service’s decision not to require a plan of operations was ‘inaction”, not ‘agency action”. The majority also reaffirmed limitations on the authority of the Forest Service to regulate mining (regulatory authority will ‘materialize only when mining is likely to cause significant disturbance of surface resources”), and agreed that it was the mining laws, not the Forest Service, that authorized the mining at issue.”
The California Department of Fish & Game (DFG) released its long-awaited Draft Environmental Impact Statement (EIR) and Proposed new Suction Dredging Regulations just as we were putting out our March newsletter. These, along with other information, can be found at DFG’s web site.
Now it is time for all of us to follow up with written comments. The deadline for public comment has been extended to 10 May 2011. Written comments should be submitted to Mark Stopher, Department of Fish and Game, 601 Locust Street, Redding, CA 96001. Or they can be faxed or emailed: Fax: (530) 225-2391; Email: email@example.com.
Brief Analysis of Subsequent Environmental Impact Report (SEIR): I personally invested a healthy portion of the last month reviewing the massive SEIR and relevant portions of the California Fish & Game Code, the Resources Code and the Government Code. With the collaborative efforts of our staff and numerous responsible members that also have substantial experience in dredging matters, I have authored 38 pages of comments on behalf of The New 49’ers. This very comprehensive response can be found here in a format which allows text to be copied & pasted to help with your own written comments.
The naked truth is that DFG is attempting to impose substantial additional restrictions upon our existing suction dredge regulations (adopted in 1994). They are not doing this by providing any evidence in the SEIR that a single fish has ever been harmed by suction dredgers; but by adopting an entirely new baseline to which the affects of suction dredging are being measured.
During 1994, the impacts of suction dredging were measured against the baseline of ongoing dredging activity dating back to the 1960’s. But this Subsequent EIR is
measuring the effects of suction dredging to a new arbitrary baseline of “no dredging activity” in order to make them appear to be substantial. This is because of the existing moratorium on suction dredging, according to the SEIR. But the moratorium was Ordered because DFG made Declarations in recent litigation that they had evidence to show a potential deleterious impact upon fish from ongoing dredging activity under the 1994 regulations. However, DFG’s ‘evidence of harm” has not materialized in their SEIR. Rather, they have decided to reevaluate all of the previous information (that was addressed in the 1994 EIR) against a “no dredging” baseline.
As if that is not bad enough; DFG has even taken it a step further in this SEIR by evaluating the negative economic and social consequences resulting from drastic reductions in our existing regulations as a “beneficial impact upon mineral development and economics.” The truth is that the burdensome additional restrictions they seek to impose upon us would eliminate dredging (in places where existing regulations allow it) across vast areas of California, and would reduce nozzle sizes along the remaining open areas to the point where it will be difficult to make money with a suction dredge. This will undermine millions of dollars worth of property values and, to a large degree, undermine dredge-mining as a small business activity in California. But rather than acknowledge the real consequences, this SEIR is measuring the economic impacts against an arbitrary “no dredging“ baseline and making the case that lifting the moratorium would be a positive gain!
There are numerous mandates from the California legislature which require state agencies to measure real environmental impacts against the cost to Americans of implementing more restrictive regulations, especially upon small business. My own impression is that DFG officials have made a deliberate and underhanded attempt to corrupt this process. If you take the time to read my formal comments, I believe all of you will agree with my assessment.
It is a real awakening to discover that some government agencies are actively working to subvert the legal processes which they are supposed to follow, all in an attempt to eliminate economic opportunity that belongs to the public which they are supposed to serve.
Because DFG has overreached their legal authority with this SEIR, we have an excellent opportunity to push them back where they belong. But we are all going to have to help with this, because California is larger than Oregon and therefore requires a stronger push. It is not enough that we have figured out what is wrong with the SEIR and Proposed Regulations. We also need to generate a very loud cumulative objection! That’s where you guys come in.
Here is a sample letter or email which provides our main talking points. The addresses where the comments should be sent are at the top. It is better if you cut and paste from my sample to create your own comments, because form-comments are not as effective. However, if you are not able to do your own, you should at least add a date and send the form-comments in with your signature and address. This is a lot better than doing nothing at all. It proves that you are concerned!
It looks like we will be dredging again in California at the beginning of the 2012 season. As we will be held to the Final EIR and regulations that come out of the ongoing process, we should all work hard to make it come out as best we can right now!
Other Types of Mining During 2011
Just in case you do not know, it is only suction dredging within California’s active waterways that remains in suspension until new dredging regulations are finally adopted. This 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.
There are no seasons imposed upon these other types of mining activity. In other words, you can do them at any time of the year.
As the suction dredging seasons in California have been suspended, we have identified some fantastic suction dredging opportunities for our members in Southern Oregon.
Our Legal Fund Needs Your Help, Again!
All of this legal and political activity has been placing a substantial strain on our legal resources. So it is a good thing that we were out in front of ourselves pulling a new fund-raiser together.
Our existing drawing will be for three ounces of beautiful Rogue River gold that I personally mined last season. We could really use your help!
The New 49’ers Prospecting Association, 27 Davis Road, Happy Camp, California 96039 (530) 493-2012 www.goldgold.com