SB 670 (WIGGINS)

Dear Assembly Member:

or

Dear Governor Schwarzenegger:

Please vote no on SB 670 (Wiggins)

  • The EIR-update, ordered by the courts, and subsequently funded by the State, is now underway.

  • The Department of Fish & Game just issued a Decision stating that existing biological information does not justify imposition of Emergency Regulations upon suction dredgers.

  • Suction Dredge Mining has not caused the decline of the salmon population along the California Coast. None of the reports on the decline of the Salmon population issued blame upon suction dredge mining.

  • The 1994 EIR found that suction dredging under existing regulations provide positive impacts; among other things, creating additional salmon spawning habitat by loosening concretized river gravels. Salmon runs are on the upswing in the Klamath River.

  • There is no scientific evidence to support shutting down a legal and legitimate industry across the State of California before an update of the existing the EIR is completed, particularly when prior studies fail to demonstrate any link between local salmon populations and suction dredge mining.

  • Suction dredge mining is already limited in California to a short season that keeps the miners out of the rivers and streams when salmon redds are present (where the eggs are deposited). There is no suction dredging allowed when salmon are spawning. There is no suction dredging allowed on the Sacramento River, where salmon populations are presently in decline.

  • A moratorium on suction dredge gold mining in California will violate the private property rights of thousands of Californians who have federal mining claims along the rivers and streams, and will likely result in very significant “takings” liability against the State.

  • The average small scale dredge-miner spends thousands of dollars per month when mining. Much of this money is spent in local, rural economies like Siskiyou County where mining is popular. Tax revenues generated from expenditures such as fuel, groceries, camping, and mining supplies, means that rural counties and the State of California benefit as well.

 
Dave Mack

“This is probably our last chance to kill a suction dredge moratorium in California!”

 

 

Dear Fellow Gold Prospector,

Assembly Bill 1789 (includes anti-suction dredge provisions) will be attached to the full California budget bill which will be voted upon by the California legislature sometime within the next few weeks.

target=”_blank”>Here is a short summary from Pete Conaty. Here is a letter to the California governor which our attorney has already written on our behalf. Here is a more complete explanation of our strategy on how to defeat this harmful attack upon our industry, and how you can help.

We need your immediate help in sending a letter, fax or email to Governor Arnold Schwarzenegger, asking him to please veto the harmful anti-dredging language included within AB 1789.

We must either kill this rider right now, or there is a good chance that suction dredging permits will be adversely affected in California next season!

Here is a ready-made message (email, fax or letter) in opposition to AB 1789. It is better if you just use this sample to write your own message. But if you do not have time to do that, please at least copy the text from our sample message over to create your own fax, letter or email to the Governor.

If you don’t know how to copy and paste material off the Internet, please click here.

To make certain your message actually makes it to the Governor’s desk and the other lawmakers, our lobbyists are asking that you direct them to one of the following addresses:

Pete Conaty & Associates
1107 9th Street, Suite 530
Sacramento, CA 95814

Or Fax your message to: (916) 492-8957

Or email your message to: pconaty@sbcglobal.net

Our lobbyists will make certain that your message is hand delivered to the Governor’s office and other key locations!

Important: Even though you send your message to our lobbyists, the heading of the message should be addressed to Governor Arnold Schwarzenegger as shown in our sample message.

This is probably our last chance; please help us kill this harmful legislation now!

Very important: You must include your own return postal address on whatever letter, fax or email that you send to the Governor. That is the only way that he can recognize and weigh the importance of your communication!

Thank you very much for your help in this very important matter!

Dave McCracken

 

The New 49’ers27 Davis Road, Happy Camp, CA 96039 (530) 493-2012

www.goldgold.com

 
Dave Mack

“We killed Assembly Bill 1032!”

Please make a donation to our Legal Fund.

I’m sure most of you have already heard that Governor Schwarzenegger has vetoed Assembly Bill 1032. This is a very big win for gold prospectors everywhere!

It was a very close race all the way to the finish line on this very harmful legislation; it could have gone either way at the last minute. Our lobbyist told me that the 1000+ emails and faxes that you guys (and gals) generated for our side during the last few days may have been what tipped the balance in our favor.

For those of you who responded to our Action Alerts, I thank you very much!

That’s another very big win for our side!

I will follow with a more detailed report (from our lobbyist) in the upcoming newsletter. Then we can put this business behind us and get on with some exciting gold prospecting activity!!

I hope you guys are following the gold prices; they are going up, up, up! Hooray for us!!

We just finished our most productive season ever in The New 49’ers, with plenty of golden adventure — a lot which has already been edited into exciting video segments. We will include those in upcoming newsletters.

For the moment, though, let’s all just breathe a sigh of relief and give ourselves some well-deserved pats on the backs for overcoming that awful legislation.

Whew; that was a close one!

Here follows Governor Schwarzenegger’s veto message:

To the Members of the California State Assembly:

I am returning Assembly Bill 1032 without my signature.

The purpose of this bill is to protect fish and wildlife from the potential deleterious effects of suction dredge mining. Although I appreciate the author’s intent and the need to protect our fish, wildlife, and water resources, this bill is unnecessary.

Current law gives the Department of Fish and Game (Department) the necessary authority to protect fish and wildlife resources from suction dredge mining. It has promulgated regulations and issues permits for this activity. Permits for suction dredge mining must ensure that these operations are not deleterious to fish and allow the Department to specify the type and size of equipment to be used. In its regulations, the Department may also designate specific waters or areas that are closed to dredging.

It is unclear why this bill specifically targets a number of specific waterways for closure or further restrictions. The listed waterways represent only a small fraction of the waters in our State where suction dredging is occurring. The benefit or protection from such a minor closure is negligible and supports the notion that scientific environmental review should precede such decisions.

Sincerely,

Arnold Schwarzenegger

 
Dave Mack

“Here is my comment letter to the State Water Resources Control Board…”

 

State Water Resources Control Board
Division of Water Quality
P.O. Box 100 Sacramento, California 95812-0100
Fax: 916-341-5620 email: commentletters@waterboards.ca.gov

6 June 2007

Dear Sirs,

My name is Dave McCracken. I manage The New 49’ers Prospecting Organization in northern California, where our members have access to over 60 miles of mining claims along the Scott, Salmon and Klamath Rivers, and some of their creek tributaries in Siskiyou County. We have around 1,300 active members, some who use suction dredges under permit from the Department of Fish and Game (DFG).

As I have been actively managing this program for the past 23 years, I have had plenty of opportunity to observe the impact upon water quality from the effects of suction dredging. My personal observation has been when any visual impact can be seen at all, the impact is small and localized. This observation has been similarly reflected by numerous studies and published reports on this subject. For example, a report on the water quality cumulative effects of placer mining on the Chugach National Forest, Alaska found:

“The results from water quality sampling do not indicate any strong cumulative effects from multiple placer mining operations within the sampled drainages.” “Several suction dredges probably operated simultaneously on the same drainage, but did not affect water quality as evidenced by above and below water sample results. In the recreational mining area of Resurrection Creek, five and six dredges would be operating and not produce any water quality changes (Huber and Blanchet, 1992).

I was operating a 12-inch dredge under Special Permit along the Klamath River during the early 1990’s. As part of that Special Permit process, DFG biologists visited the area where I was dredging and conducted turbidity sampling above my dredge and around 200 feet below my dredge. They were not able to determine any increase in turbidity. Therefore, my Special Permit to operate the 12-inch dredge was approved for as long as I continued to apply for it. These observations were consistent with other published information on this subject:

Thomas (1985), using a dredge with a 2.5-inch diameter nozzle on Gold Creek, Montana, found that suspended sediment levels returned to ambient levels 100 feet below the dredge. Gold Creek is a relatively undisturbed third order stream with flows of 14 cubic feet per second. A turbidity tail from a 5-inch (12.7 cm) dredge on Clear Creek, California was observable for only 200 feet downstream. Water velocity at the site was about 1 foot per second (Lewis, 1962).


Turbidity below a 2.5 inch suction dredge in two Idaho streams was nearly undetectable even though fine sediment, less than 0.5 mm in diameter, made up 13 to 18 percent, by weight, of substrate in the two streams (Griffith and Andrews, 1981).


Hassler (1986) noted “…during dredging, suspended sediment and turbidity were high immediately below the dredge, but diminished rapidly within distance downstream.” He measured 20.5 NTU 4 meters below a 5-inch dredge that dropped off to 3.4 NTU 49 meters below the dredge. Turbidity from a 4-inch dredge dropped from 5.6 NTU 4 meters below to 2.9 NTU 49 meters below with 0.9 NTU above. He further noted “…water quality was impacted only during the actual operation of the dredge…since a full day of mining by most Canyon Creek operators included only 2 to 4 hours of dredge running time, water quality was impacted for a short time.” Also “…the water quality of Canyon Creek was very good and only affected by suction dredging near the dredge when it was operated.”

As I am sure that you aware, environmental interests have been trying to eliminate suction dredging from California’s waterways for a long time. During recent years, they have been making noise about the possibility that the localized increased turbidity behind some suction dredges may contribute to raising water temperatures in the overall waterway. With concern over this possibility, we hired two qualified fish biologists (both retired from the EPA) two years ago to perform water temperature testing upstream and downstream of active dredging operations along the Klamath River. They tested in numerous locations, and were not able to find any measurable increase in water temperature behind operating dredges. Although, in some cases, they did discover cooler water within the dredge holes, and cooler water within the discharges from the dredges which were sucking up the cooler water (probably ground water) from the dredge holes. Similar results were acknowledged by published material on this subject:

Dredge mining had little, if any, impact on water temperature (Hassler, T.J., W.L. Somer and G.R. Stern, 1986). In addition, the Oregon Siskiyou Dredge Study (SNF, 2001) states, “There is no evidence that suction dredging affects stream temperature.”

I was personally directly involved with the California Environmental Quality Act (CEQA) process during 1993 and 1994 (and again in 1997), when existing State-wide suction dredge regulations were adopted by California. I recall that the State Water Resources Control Board enacted a State-wide exemption at that time for persons operating suction dredges in conformance with Section 5653 suction dredge regulations. As I recall, this exemption was issued to simplify the permitting process for suction dredgers (many who visit from out of state and only suction dredge during a brief holiday or vacation), and also to not burden the State Water Resources Control Board or its Regional offices with applications from thousands of (very) small-scale gold miners who have a negligible impact, if any, upon water quality. This was somewhat reflected in the environmental Impact Statement (EIS) which was published by DFG at that time:

Suction dredging causes less than significant effects to water quality. (CDFG, 1997).

“Suction dredges, powered by internal combustion engines of various sizes, operate while floating on the surface of streams and rivers. As such, oil and gas may leak or spill onto the water’s surface. There have not been any observed or reported cases of harm to plant or wildlife as a result of oil or gas spills associated with suction dredging” (CDFG, 1997).

The impact of turbidities on water quality caused by suction dredging can vary considerably depending on many factors. Factors which appear to influence the degree and impact of turbidity include the amount and type of fines (fine sediment) in the substrate, the size and number of suction dredges relative to stream flow and reach of stream, and background turbidities (CDFG, 1997).

“Effects from elevated levels of turbidity and suspended sediment normally associated with suction dredging as regulated in the past in California appear to be less than significant with regard to impacts to fish and other river resources because of the level of turbidity created and the short distance downstream of a suction dredge where turbidity levels return to normal” (CDFG, 1997).

As far as I know, the most comprehensive study to date concerning how water quality is affected by suction dredging was contracted by the EPA to analyze of the effects on mining in the Fortymile River in Alaska. The report stated:

“This report describes the results of our research during 1997 and 1998 into the effects of commercial suction dredging on the water quality, habitat, and biota of the Fortymile River. The focus of our work on the Fortymile in 1997 was on an 8-inch suction dredge (Site 1), located on the mainstem At Site 1, dredge operation had no discernable effect on alkalinity, hardness, or specific conductance of water in the Fortymile. Of the factors we measured, the primary effects of suction dredging on water chemistry of the Fortymile River were increased turbidity, total filterable solids, and copper and zinc concentrations downstream of the dredge. These variables returned to upstream levels within 80-160 m downstream of the dredge. The results from this sampling revealed a relatively intense, but localized, decline in water clarity during the time the dredge was operating” (Prussian, A.M., T.V. Royer and G.W. Minshall, 1999).

“The data collected for this study help establish regional background geochemical values for the waters in the Fortymile River system. As seen in the chemical and turbidity data any variations in water quality due to the suction dredging activity fall within the natural variations in water quality” (Prussian, A.M., T.V. Royer and G.W. Minshall, 1999).

While I acknowledge that the possibility exists that a suction dredger could encounter an occasional patch of particularly-silty streambed, while dredging in a smaller-sized waterway, which could cause detectable increased turbidity levels some extended distance downstream, this would be a rare anomaly which seldom occurs. My guess is that our adversaries in the environmental community will grasp at these very rare occurrences to push their own agenda — which we all know has less to do with the health of fish, than it does about trying to rid America’s public lands of productive activity.

Nothing short of complete prohibition of all productive activity can guarantee that an occasional anomaly might not occur. This is true of any regulated activity. We would not want to see the Statewide exemption for suction dredgers un-renewed just because of the possibility of a rare anomaly. There are several reasons to pause and consider:

1) The occurrence of excess turbidity by suction dredgers is so rare, there is no evidence that we are aware of that even suggests that those rare occurrences have ever harmed a single fish or other aquatic species.

2) The burdensome and expensive requirement for suction dredgers to acquire a water quality permit would all but eliminate the activity in the State of California. DFG is already charging out-of-state visitors $167.25 for an annual suction dredge permit. That’s already a lot of money to spend on a permit for someone who is only going to visit for a few days or a week or two. I know, because I am in the business of trying to bring visitors to California. And I can tell you that many who would otherwise come here are already discouraged from coming because of the cost of the existing suction dredge permit.

Adding a burdensome water quality permit to the process will also discourage most Californians who presently enjoy the activity of suction dredging.

Gold prospecting has been a productive activity in California since before we were even a State. And while I acknowledge that some of the earlier practices were harmful to the environment, suction dredging today is carefully regulated by DFG and other agencies to ensure that the overall impacts do not create any measurable negative impact.

With this in mind, I encourage you to please weigh the negatives against the positives when you make a decision concerning a renewal of your state-wide exemption for suction dredgers. While I understand that economic consequences not your first concern, good leadership and responsibility to Californians require State agencies to take an honest look at the costs and benefits of the various policies which are being considered.

In this case, if you choose to not renew the state-wide water quality exemption for suction dredgers, I can nearly guarantee that you will eliminate an entire industry in this State; an industry which does a great deal to help support many rural communities; an industry that generates millions upon millions of dollars in income for California — and would continue to do so for the foreseeable future. We hope you will carefully consider what will be gained before you destroy our industry!

Thank you very much for considering my comments.

Sincerely,

Dave McCracken
General Manager, The New 49’ers

 

 
Dave Mack

“Your comments are needed!”

 

The California State Water Resources Board is requesting comments from the public regarding the effects of suction dredge mining on water quality. Based upon the comments, the Water Board will assess the available information to evaluate a possible further course of action. You can link to the Water Board’s Notice here.

This is a very important matter to the future of our industry. The outcome of this will either help or hurt gold dredgers in California!

We believe that some of the most productive input prospectors can provide to the Water Board are the conclusions from multiple studies which have already proven that suction dredge activity within existing California regulations does not create any significant negative impact upon water quality.

To help with this, a very qualified fish biologist has taken the time to compile for us many of the important conclusions into a report which you can copy from. Those conclusions can be found here.

The Water Board’s Notice requests comments to be sent by email to the following address: commentletters@waterboards.ca.gov Comments are being accepted until 12 PM on June 22. The subject line of your email should read, “Comment Letter – Suction Dredge Mining

Please take a moment to send in your comments on behalf of suction dredgers. Because I can guarantee that our adversaries will be submitting material with the hope of shutting us down!

Please don’t copy all of the conclusions into your comments. It is better to just copy those sections which give support to the arguments which you personally want to make. It is good if you make your own arguments, and then copy over the citations which reinforce your position. This way, everyone is not just sending in the very same report!

Note: The citations which you want to copy are the ones that include the source of the information inside parenthesis. Here’s an example: Dredge mining had little, if any, impact on water temperature (Hassler, T.J., W.L. Somer and G.R. Stern, 1986).

The citations in the report will carry weight, because they originate from published results. If you don’t know how to copy and paste material off the Internet, please click here.

As an example, here is a copy of the comments which I personally sent in. They relay some of my own experiences concerning water quality, and they use some of the compiled citations to reinforce my view.

Important: You must include your name and address on your comments! Comments are generally not accepted by anonymous persons! Please keep your comments civilized, and please keep them focused upon the subject of how dredging affects water quality. That is the only thing they will consider in these comments!

The open hearing on this matter is scheduled for 10 AM on 12 June at the Resources Building, First Floor Auditorium, 1416 9th Street in Sacramento. Being there is not as important as sending in written comments, but it would be a good thing to have a big showing of support at the hearing if you can make it!

The main thing is to please draft some comments and send them in!

Thank you very much for your help in this matter!

Dave McCracken The New 49’ers

The New 49’ers27 Davis Road, Happy Camp, CA 96039 (530) 493-2012

www.goldgold.com

 
Dave Mack

“This is the current status of the ongoing EIR process on suction dredging in California.”

This was a section of Dave’s March newsletter, which can be found here.

Progress on EIR:

The one thing that will allow us all the put our suction dredges back in the California waterways is completion of the EIR!

It is so important that the job must be done right. This is because anti-mining activists are also attacking us within the ongoing EIR process. They are trying to show that suction dredging creates really bad impacts, when it actually does not.

During the past several weeks, DFG has organized several formal meetings where interested parties (concerning suction dredging) have been able to meet and discuss the various issues which need to be worked out. The third and final of these meetings took place on 11 March. The New 49’ers, along with several other organizations within our industry, has very qualified representatives at these meetings. Anti-mining activists are also well represented in the process. There are specialists involved which represent all sides of the issues.

Through the discussions and other public input so far concerning suction dredging, the subject of mercury appears to be one of the most important and contentious issues so far.

While the authorities have proven that normal suction dredges recover 98% of the mercury that is sucked up into our sluice boxes, anti-mining activists are taking strong issue with the potential loss of 2% becoming a water quality violation. Yes; I know; you would think that the various government agencies and environmental organizations would be happy with a 98% rate of mercury recovery at no cost to the taxpayers. But nearly all of the focus remains upon the potential 2% loss of mercury which would have already been in the stream or river in the first place!

I personally have been involved with several federal projects during the past few years to help figure out how to recover 100% of the mercury (zero loss) when trying to remove mercury from submerged waste sites where hundreds or thousands of pounds of mercury were lost from historical gold mines.

During 2008, we developed a closed circuit dredging devise that is able to trap all of the sediments and all of the water used to create suction-power at the nozzle. We tested the system with assistance from the Bureau of Land Management and U.S. Geological Service, actually proving that by recirculating the same water over and over gain to dredge contaminated waste material (from the South Yuba River in California), we were able to capture and concentrate 100% of the finest particles of mercury that would presumably be lost from a normal suction dredge. The project was quite successful!

However, anti-mining activists have now taken the mercury concentration levels within our closed system (which was used for hours within a known waste site) to try and prove their case that suction dredgers are discharging high levels of mercury into active waterways all across the State. It never ceases to amaze me how low our enemies will stoop to try and get rid of us! Here, we were doing a really good thing by developing equipment that will help clean up serious waste sites. And anti-mining activists are trying to misuse the data to create a negative reflection upon all suction dredgers.

So I have personally invested quite a lot of time in trying to straighten this all out within the ongoing EIR process concerning normal dredging activity outside of hazardous waste sites. You can find my work on this subject on our web site. I highly recommend this as excellent reading if you want to get a feel for what we are really up against.

The New 49’ers27 Davis Road, Happy Camp, CA 96039 (530) 493-2012 www.goldgold.com

 
Dave Mack

“Here is a compilation of some published findings concerning the effects of suction dredging upon water quality…”

State Water Resources Control Board
Division of Water Quality
P.O. Box 100 Sacramento, California 95812-0100
Fax: 916-341-5620 email: commentletters@waterboards.ca.gov

GEOGRAPHICAL SCALE OF SMALL-SCALE SUCTION DREDGING

It has been observed that environmentalists opposing suction dredging use data gleaned from reports that studied effects of environmental perturbations that are occurring on a system-wide basis. For example, they would characterize the affects of turbidity from a suction dredge as if it would impact downstream organisms in a manner that system-wide high water flow events might. This approach is entirely inconsistent with the way in which suction dredges operate or generally impact their downstream environment.

The California Department of Fish and Game (1997) described typical dredging activities as follows’ “An individual suction dredge operation affects a relatively small portion of a stream or river. A recreational suction dredger (representing 90-percent of all dredgers) may spend a total of four to eight hours per day in the water dredging an area of 1 to 10 square meters. The average number of hours is 5.6 hours per day. The remaining time is spent working on equipment and processing dredged material. The area or length of river or streambed worked by a single suction dredger, as compared to total river length, is relatively small compared to the total available area.”

In the Oregon Siskiyou National Forest Dredge Study, Chapter 4, Environmental Consequences, some perspective is given to small-scale mining. “The average claim size is 20 acres. The total acreage of all analyzed claims related to the total acres of watershed is about 0.2 percent. The average stream width reflected in the analysis is about 20 feet or less and the average mining claim is 1320 feet in length. The percentage of land area within riparian zones on the Siskiyou National Forest occupied by mining claims is estimated to be only 0.1 percent.” The report goes on to say, “Over the past 10 years, approximately 200 suction dredge operators per season operate on the Siskiyou National Forest” (SNF, 2001).

A report from the U.S. Forest Service, Siskiyou National Forest (Cooley, 1995) answered the frequently asked question, “How much material is moved by annual mining suction dredge activities and how much does this figure compare with the natural movement of such materials by surface erosion and mass movement?” The answer was that suction dredges moved a total of 2,413 cubic yards for the season. Cooley (1995) used the most conservative values and estimated that the Siskiyou National Forest would move 331,000 cubic yards of material each year from natural causes. Compared to the 2413 (in-stream) cubic yards re-located by suction mining operations the movement rate by suction dredge mining would equal about 0.7% of natural rates.

It has been suggested that a single operating suction dredge may not pose a problem but the operation of multiple dredges would produce a cumulative effect that could cause harm to aquatic organisms. However, “No additive effects were detected on the Yuba River from 40 active dredges on a 6.8 mile (11 km) stretch. The area most impacted was from the dredge to about 98 feet (30 meters) downstream, for most turbidity and settelable solids (Harvey, B.C., K. McCleneghan, J.D. Linn, and C.L. Langley, 1982). In another study, “Six small dredges (<6 inch dredge nozzle) on a 1.2 mile (2 km) stretch had no additive effect (Harvey, B.C., 1986). Water quality was typically temporally and spatially restricted to the time and immediate vicinity of the dredge (North, P.A., 1993).

A report on the water quality cumulative effects of placer mining on the Chugach National Forest, Alaska found that, “The results from water quality sampling do not indicate any strong cumulative effects from multiple placer mining operations within the sampled drainages.” “Several suction dredges probably operated simultaneously on the same drainage, but did not affect water quality as evidenced by above and below water sample results. In the recreational mining area of Resurrection Creek, five and six dredges would be operating and not produce any water quality changes (Huber and Blanchet, 1992).

The California Department of Fish and Game stated in its Draft Environmental Impact Report that “Department regulations do not currently limit dredger densities but the activity itself is somewhat self-regulating. Suction dredge operators must space themselves apart from each other to avoid working in the turbidity plume of the next operator working upstream. Suction Dredging requires relatively clear water to successfully harvest gold ” (CDFG, 1997).

ELEVATED TURBIDITY

Suction dredging causes less than significant effects to water quality. The impacts include increased turbidity levels caused by re-suspended streambed sediment and pollution caused by spilling of gas and oil used to operate suction dredges (CDFG, 1997).

“Suction dredges, powered by internal combustion engines of various sizes, operate while floating on the surface of streams and rivers. As such, oil and gas may leak or spill onto the water’s surface. There have not been any observed or reported cases of harm to plant or wildlife as a result of oil or gas spills associated with suction dredging” (CDFG, 1997).

The impact of turbidities on water quality caused by suction dredging can vary considerably depending on many factors. Factors which appear to influence the degree and impact of turbidity include the amount and type of fines (fine sediment) in the substrate, the size and number of suction dredges relative to stream flow and reach of stream, and background turbidities (CDFG, 1997).

Because of low ambient levels of turbidity on Butte Creek and the North Fork American River, California, Harvey (1986) easily observed increases of 4 to 5 NTU from suction dredging. Turbidity plumes created by suction dredging in Big East Fork Creek were visible in Canyon Creek 403 feet (123 meters) downstream from the dredges (Somer and Hassler, 1992).

In contrast, Thomas (1985), using a dredge with a 2.5-inch diameter nozzle on Gold Creek, Montana, found that suspended sediment levels returned to ambient levels 100 feet below the dredge. Gold Creek is a relatively undisturbed third order stream with flows of 14 cubic feet per second. A turbidity tail from a 5-inch (12.7 cm) dredge on Clear Creek, California was observable for only 200 feet downstream. Water velocity at the site was about 1 foot per second (Lewis, 1962).

Turbidity below a 2.5 inch suction dredge in two Idaho streams was nearly undetectable even though fine sediment, less than 0.5 mm in diameter, made up 13 to 18 percent, by weight, of substrate in the two streams (Griffith and Andrews, 1981).

“During a dredging test carried out by the California Department of Fish and Game on the north fork of American River, it was concluded that turbidity was greatest immediately downstream, returning to ambient levels within 100 feet. Referring to 52 dredges studied, Harvey (1982) stated “…generally rapid recovery to control levels in both turbidity and settable solids occurred below dredging activity.”

Hassler (1986) noted “…during dredging, suspended sediment and turbidity were high immediately below the dredge, but diminished rapidly within distance downstream.” He measured 20.5 NTU 4 meters below a 5-inch dredge that dropped off to 3.4 NTU 49 meters below the dredge. Turbidity from a 4-inch dredge dropped from 5.6 NTU 4 meters below to 2.9 NTU 49 meters below with 0.9 NTU above. He further noted “…water quality was impacted only during the actual operation of the dredge…since a full day of mining by most Canyon Creek operators included only 2 to 4 hours of dredge running time, water quality was impacted for a short time.” Also “…the water quality of Canyon Creek was very good and only affected by suction dredging near the dredge when it was operated.”

The US Geological Survey and the Alaska Department of Natural Resources conducted a survey into dredging on Alaska’s Fortymile River, which is a river designated as a wild and scenic corridor. The study stated, “One dredge had a 10-inch diameter intake hose and was working relatively fine sediment on a smooth but fast section of the river. The other dredge had an 8-inch intake and was working coarser sediments in a shallower reach of the river. State regulations require that suction dredges may not increase the turbidity of the river by more than 5 nephelometric turbidity units (NTU), 500 feet (=150m) downstream. In both cases, the dredges were well within compliance with this regulation.”


http://www.akmining.com/mine/usgs1.htm

Samples were collected on a grid extending downstream from the dredges as they were operating and compared to measurements made upstream of the dredges. One dredge had a 10-inch diameter intake hose and was working relatively fine sediments on a smooth but fast section of the river. The results of the turbidity survey for the 10-inch dredge are shown on figure 2. Turbidity values behind the 8-inch dredge were lower, because the smaller intake was moving less sediment material, and because the coarser sediments being worked by the 8-inch dredge settled more rapidly.

The turbidity values found in the dredge studies fall within the range of turbidity values found for currently mined areas of the Fortymile River and many of its un-mined tributaries. Figure 3 shows the ranges of turbidity values observed along the horizontal axis, and the number of samples that fall within each of those ranges. For example, 25 samples had turbidity between 1.0 and 1.5 NTU, 22 of which were in a dredged area. The highest turbidity value was from an un-mined tributary to Uhler Creek; the lowest from a number of different tributaries to the North Fork. As seen on the figure, there is no appreciable difference in the distribution of turbidity values between mined and un-mined areas.

http://www.akmining.com/mine/usgs1.htm

In American studies, average turbidity levels have been shown to be between 5 and 15 NTU 5 meters below dredges. But even the maximum turbidity level measured in a clay pocket (51 NTU) fell below 10 NTU within 45 meters. Turbidity increases, from even large dredges on moderate sized streams, have shown to be fairly low, usually 25 NTU or less, and to return to background within 30 meters. The impact is localized and short lived; indicating minimum impact on moderate and larger waterways.

Within any waterway, sediment is primarily carried in suspension during periods of rainfall and high flow. This is an important point, as it indicates that a dredging operation has less, or at least no greater effect on sediment mobilization and mobility than a rain storm.”

All of these research studies have concluded that only a local significant effect occurs, with it decreasing rapidly downstream. The studies have been wide spread, having been undertaken in Alaska, Idaho, California, Montana and Oregon.

The science supports de minimus status for < 6-inch suction dredges. Turbidity is de minimus according to the U.S. Army Corps of Engineers.

“Effects from elevated levels of turbidity and suspended sediment normally associated with suction dredging as regulated in the past in California appear to be less than significant with regard to impacts to fish and other river resources because of the level of turbidity created and the short distance downstream of a suction dredge where turbidity levels return to normal” (CDFG, 1997).

Furthermore, individuals that have not, in fact, operated suction dredges may not realize that it is a self-limiting operation. The dredge operator must be able to see his work area to operate safely and manage the intake of the dredge nozzle. If high levels of turbidity were to flood the dredger’s work area and render him “blind” he would have to move the operation to another location.

INCREASING WATER TEMPERATURE

Responsible suction dredge miners do not dredge stream banks (it is illegal). Dredging occurs only in the wetted perimeter of the stream. Therefore, it is unlikely suction dredging will cause a loss of cover adjacent to the stream.

Solar radiation is the single most important energy source for the heating of streams during daytime conditions. The loss or removal of riparian vegetation can increase solar radiation input to a stream increasing stream temperature. Suction dredge operations are confined to the existing stream channel and do not affect riparian vegetation or stream shade (SNF, 2001).

Suction dredging could alter pool dimensions through excavation, deposition of tailings, or by triggering adjustments in channel morphology. Excavating pools could substantially increase their depth and increase cool groundwater inflow. This could reduce pool temperature. If pools were excavated to a depth greater than three feet, salmonid pool habitat could be improved. In addition, if excavated pools reduce pool temperatures, they could provide important coldwater habitats for salmonids living in streams with elevated temperatures (SNF, 2001).

Dredge mining had little, if any, impact on water temperature (Hassler, T.J., W.L. Somer and G.R. Stern, 1986). In addition, the Oregon Siskiyou Dredge Study states, “There is no evidence that suction dredging affects stream temperature” (SNF, 2001).

Increases in sediment loading to a stream can result in the stream aggrading causing the width of the stream to increase. This width increase can increase the surface area of the water resulting in higher solar radiation absorption and increased stream temperatures. Suction dredge operations are again confined to the existing stream channel and do not affect stream width (SNF, 2001).

Stream temperature can also increase from increasing the stream’s width to depth ratio. The suction dredge operation creates piles in the stream channel as the miner digs down into the streambed. The stream flow may split and flow around the pile decreasing or increasing the wetted surface for a few feet. However, within the stream reach that the miner is working in, the change is so minor that the overall wetted surface area can be assumed to be the same so the total solar radiation absorption remains unchanged. Suction Dredging results in no measurable increase in stream temperature (SNF, 2001).

“Small streams with low flows may be significantly affected by suction dredging, particularly when dredged by larger dredges (Larger than 6 inches) (Stern, 1988). However, the California Department of Fish and Game concluded, “current regulations restrict the maximum nozzle size to 6 inches on most rivers and streams which, in conjunction with riparian habitat protective measures, results in a less than significant impact to channel morphology” (CDFG, 1997).

WATER CHEMISTRY

Concern has been raised that small-scale dredge operations may increase the metal load of the surface waters. Whereas dredge operations do re-suspend the bottom sediment, the magnitude of this disturbance on stream metal loading was unknown. It was unknown what affect the dredge operations may have on the transport and redistribution of metals-some of which (for example, arsenic, copper, and zinc) have environmental importance.

The U.S. Geological Survey and the Alaska Department of Natural Resources cooperated in a project, on Fortymile River, to provide scientific data to address these questions. This river is designated a Wild and Scenic Corridor by the Alaska National Interest Lands Conservation Act. Current users of the river include placer mine operators, as well as boaters and rafters. Along the North Fork Fortymile River, and just below its confluence with the South Fork, mining is limited to a few small suction dredges which, combined, produce as much as a few hundred ounces of gold per year. In this area, some potential environmental concerns have been raised associated with the mining activities, including increased turbidity of the river water; adverse impact on the overall chemical quality of the river water; and potential additions of specific toxic elements, such as arsenic, to the river during mining operations.

Field measurements were made for pH, turbidity, electrical conductivity (a measure of the total dissolved concentrations of mineral salts), and stream discharge for the Fortymile River and many of its tributaries. Samples were collected at the same time for chemical analyses, including trace-metal analyses

Water-quality samples were collected at three points 200 feet behind each of the two operating suction dredges. One sample was collected on either side of the plume, and one in the center of the plume. The samples were passed through a filter with a nominal pore size of 0.45 micrometers and acidified to a pH less than about 2. Results are shown in the following table. Samples 1A, 1C, 2A, and 2C are from either side of the plume behind dredges 1 and 2, respectively. Samples 1B and 2B are from the center of each plume. All concentrations given are in micrograms per liter, except pH, which is expressed in standard units.

The data show similar water-quality values for samples collected within and on either side of the dredge plumes. Further, the values shown in the table are roughly equal to or lower than the regional average concentrations for each dissolved metal, based on the analyses of 25 samples collected throughout the area. Therefore, suction dredging appears to have no measurable effect on the chemistry of the Fortymile River within this study area. We have observed greater variations in the natural stream chemistry in the region than in the dredge areas (Wanty, R.B., B. Wang, and J. Vohden. 1997).

Water Quality Data

A final report from an EPA contract for analysis of the effects on mining in the Fortymile River, Alaska stated, “This report describes the results of our research during 1997 and 1998 into the effects of commercial suction dredging on the water quality, habitat, and biota of the Fortymile River…. The focus of our work on the Fortymile in 1997 was on an 8-inch suction dredge (Site 1), located on the mainstem… At Site 1, dredge operation had no discernable effect on alkalinity, hardness, or specific conductance of water in the Fortymile. Of the factors we measured, the primary effects of suction dredging on water chemistry of the Fortymile River were increased turbidity, total filterable solids, and copper and zinc concentrations downstream of the dredge. These variables returned to upstream levels within 80-160 m downstream of the dredge. The results from this sampling revealed a relatively intense, but localized, decline in water clarity during the time the dredge was operating” (Prussian, A.M., T.V. Royer and G.W. Minshall, 1999).

“The data collected for this study help establish regional background geochemical values for the waters in the Fortymile River system. As seen in the chemical and turbidity data any variations in water quality due to the suction dredging activity fall within the natural variations in water quality” (Prussian, A.M., T.V. Royer and G.W. Minshall, 1999).

REMOVAL OF MERCURY FROM THE ENVIRONMENT

Looking for gold in California streams and rivers is a recreational activity for thousands of state residents. As these miners remove sediments, sands, and gravel from streams and former mine sites to separate out the gold, they are also removing mercury. This mercury is the remnant of millions of pounds of pure mercury that was added to sluice boxes used by historic mining operations between 1850 and 1890. Modern day small-scale gold suction dredgers do not use mercury to recover gold during the operation of the dredge. Therefore, any gold that would be found in their possession would be that which was extracted from the stream or river they are working.

Taking mercury out of streams benefits the environment. Efforts to collect mercury from recreational gold miners in the past, however, have been stymied due to perceived regulatory barriers. Disposal of mercury is normally subject to all regulations applicable to hazardous waste.

In 2000, EPA and California’s Division of Toxic Substance Control worked in concert with other State and local agencies to find the regulatory flexibility needed to collect mercury in a simple and effective manner. In August and September, 2000 the first mercury “milk runs” collected 230 pounds of mercury. A Nevada County household waste collection event held in September 2000 collected about 10 pounds of mercury. 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. This successful pilot program demonstrates how recreational gold miners and government agencies can work together to protect the environment (US EPA, 2001).

Mercury occurs in several different geochemical forms, including elemental mercury, ionic (or oxidized) mercury, and a suite of organic forms, the most important of which is methylmercury. Methylmercury is the form most readily incorporated into biological tissues and is most toxic to humans. The process of mercury removal by suction dredging does not contaminate the environment because small-scale suction dredging removes elemental mercury. Removal of elemental mercury before it can be converted, by bacteria, to methylmercury is a very important component of environmental and human health protection provided as a secondary benefit of suction dredging.

THE REAL ISSUE

The issue of localized conflict with suction dredgers and other outdoor recreational activities can be put into a more reasonable perspective using the data provided at the beginning of this report. For example, the total acreage of all analyzed claims related to the total acres of watershed is about 0.2 percent. The percentage of land area within riparian zones on the Siskiyou National Forest occupied by mining claims is estimated to be only 0.1 percent.” The report goes on to say, “Over the past 10 years, approximately 200 suction dredge operators per season operate on the Siskiyou National Forest (SNF, 2001).

The issue against suction dredge operations in the streams of the United States appears to be less an issue of environmental protection and more of an issue of certain organized individuals and groups being unwilling to share the outdoors with others without like interests.

Management of the Fortymile River region (a beautiful, wild and scenic river in the remote part of east-central Alaska) and its resources is complex due to the many diverse land-use options. Small-scale, family-owned gold mining has been active on the Fortymile since the “gold rush” days of the late 1880’s. However, in 1980, the Fortymile River and many of its tributaries received Wild and Scenic River status. Because of this status, mining along the river must compete with recreational usage such as rafting, canoeing, and fishing.

A press release from the U. S. Geological Survey stated, in part, the following, “The water quality of the Fortymile River-a beautiful, …has not been adversely impacted by gold placer mining operations according to an integrated study underway by the U.S. Geological Survey and the Alaska Department of Natural Resources.

Violation of mining discharge regulations would close down the small-scale mining operations. No data existed before this study to establish if the mining was degrading the water quality. However, even with the absence of data, environmental groups were active to close down mining on the river citing unsubstantiated possible discharge violations.

This study has found no violations to date to substantiate closure of the small-scale mining operations. The result is a continuance of a way of life on the last American frontier.” (U.S. Geological Survey October 27, 1998). I have no doubt that this is the real issue currently facing small-scale gold suction dredgers in California.

Suction dredges do not add pollution to the aquatic environment. They merely re -suspend and re-locate the bottom materials (overburden) within the river or stream.

I hope this scientific research information I have provided will be helpful in your efforts regarding suction dredge mining and water quality. I thank you for this opportunity to submit this data.

LITERATURE CITED

CDFG, 1997. draft Environmental Impact Report: Adoption of Amended Regulations for Suction Dredge Mining. State of California, The Resource Agency, Department of Fish and Game

Cooley, M.F. 1995. Forest Service yardage Estimate. U.S. Department of Agriculture, U.S. Forest Service, Siskiyou National Forest, Grants Pass, Oregon.

Griffith, J.S. and D.A. Andrews. 1981. Effects of a small suction dredge on fishes and aquatic invertebrates in Idaho streams. North American Journal of Fisheries Management 1:21- 28.

Harvey, B.C., K. McCleneghan, J.D. Linn, and C.L. Langley, 1982. Some physical and biological effects of suction dredge mining. Lab Report No. 82-3. California Department of Fish and Game. Sacramento, CA.

Harvey, B.C. 1986. Effects of suction gold dredging on fish and invertebrates in two California streams. North American Journal of Fisheries Management 6:401-409.

Hassler, T.J., W.L. Somer and G.R. Stern. 1986. Impacts of suction dredge mining on anadromous fish, invertebrates and habitat in Canyon Creek, California. California Cooperative Research Unit, U.S. Fish and Wildlife Service, Humbolt State University. Cooperative Agreement No 14-16-0009-1547.

Huber and Blanchet, 1992. Water quality cumulative effects of placer mining on the Chugach National Forest, Kenai Peninsula, 1988-1990. Chugach National Forest, U.S. Forest Service, Alaska Region, U.S. Department of Agriculture.

Lewis, 1962. Results of Gold Suction Dredge Investigation. Memorandum of September 17, 1962. California Department of Fish and Game, Sacramento, CA. North, P.A., 1993. A review of the regulations and literature regarding the environmental impacts of suction gold dredging. U.S. Environmental Protection Agency, Region 10, Alaska Operations Office. EP 1.2: G 55/993.

Prussian, A.M., T.V. Royer and G.W. Minshall, 1999. Impact of suction dredging on water quality, benthic habitat, and biota in the Fortymile River, Resurrection Creek, and Chatanika River, Alaska, FINAL REPORT. US Environmental Protection Agency, Region 10, Seattle, Washington.

SNF, 2001. Siskiyou National Forest, Draft Environmental Impact Statement: Suction Dredging Activities. U.S. Department of Agriculture, U.S. Forest Service, Siskiyou National Forest, Medford, OR.

Somer, W.L. and T.J. Hassler. 1992. Effects of suction-dredge gold mining on benthic invertebrates in a northern California stream. North American Journal of Fisheries Management 12:244-252

Stern, 1988. Effects of suction dredge mining on anadromous salmonid habitat in Canyon Creek, Trinity County, California. M.S. Thesis, Humbolt State University, Arcata, CA.

Thomas, V.G. 1985. Experimentally determined impacts of a small, suction gold dredge on a Montana stream. North American Journal of Fisheries Management 5:480-488.

US EPA, 2001. Mercury Recovery from Recreational Gold Miners. http://www.epa.gov/region09/cross_pr/innovations/merrec.html

Wanty, R.B., B. Wang, and J. Vohden. 1997. Studies of suction dredge gold-placer mining operations along the Fortymile River, eastern Alaska. U.S. Geological Survey Fact Sheet FS-154-97.

 

Nov 232011
 
 
Dave Mack

“Here is some further explaination of the Karuk Tribe Lawsuit against the California DFG to change dredging regulations…”

Hello everyone,

This past week was a busy one concerning the Karuk litigation against the Department of Fish & Game (DFG).

On very short notice, we got the word out last weekend that the Siskiyou County Supervisors would vote Tuesday morning (3 January) on a Resolution speaking out against the way DFG and the Karuks have settled the litigation behind closed doors (deciding upon further restrictions to prospectors). Timing required the Resolution to be taken up without delay; so that if it were passed, the Resolution could be included within the court filings that we will submit this next week. We feel it strengthens our position to have a County government providing the Court with a formal condemnation of this solution that the Karuks and DFG have come up with.

I was impressed and relieved that so many prospectors turned up for the Supervisor’s meeting in Yreka on Tuesday, and I’m sure the Supervisors were also impressed. Some came from hundreds of miles away. Quite a few prospectors from Oregon came down to give us support. As a result, the Supervisor’s hearing room was packed, with prospectors trailing out into the hallway.

Ultimately, the Supervisors unanimously passed a Resolution demanding that DFG follow the correct due-process in making any changes to the suction dredge regulations. They authorized Marcia Armstrong, who is the Chair-person for the Supervisors, to encourage the Superior Court Judge (in the litigation) to not endorse the Settlement Agreement between the Karuk’s and DFG and Order DFG to follow the public process as it is supposed to do. The Resolution also authorized Ms. Armstrong to contact our State Lawmakers and the Governor to request their assistance in getting DFG to follow due process.

From the Supervisor’s meeting, 49’er Mike and I spent two long days traveling to and from Sacramento to meet with one of the attorneys that is representing DFG in the ongoing litigation. Through earlier discussion with our own attorneys, DFG had agreed to allow us access to the documents concerning suction dredging, other than what they consider as privileged and exempt from discovery.

When we arrived at the Resources Department in Sacramento, they had already arranged a room where Mike and I could review the documents, and we were met by around 10 full file boxes of material. Big job!! Mike started at one end, I started at the other, and we met somewhere in the middle. We ended up taking copies of just under 500 pages. This was all copied again for our own files, and then we forwarded everything we received over to our attorneys.

While doing discovery in Sacramento, we were shocked in two ways:

1) The attorney representing DFG told us that the new restrictions to suction dredging are not being adopted pursuant to any of the emergency provisions contained within the California Environmental Quality Act (CEQA) (which would require some formal biological justification). He told us that the regulatory changes are simply being adopted pursuant to a Stipulated Agreement with the Karuk Tribe of California in the ongoing litigation. Just that; nothing more! In other words, DFG believes it has the authority to completely shortcut the full CEQA process by changing our regulations behind closed doors in a quiet settlement with the Karuks. Wow!!

We should all start asking ourselves why anyone should bother going through the whole public process in the first place, if a State agency can simply trade it all off behind closed doors with an extremist group that files a lawsuit?

2) Then the attorney representing DFG told Mike and I that because of the ongoing litigation, most recent documents concerning suction dredging in the DFG files would be withheld from our view under some kind of expanded attorney-client privilege. Therefore, they are refusing to make any of the biological information available to us that supports the reasons why they have restricted dredging seasons or eliminated the activity altogether on some waterways!

Can you believe that?

The California Environmental Quality Act (CEQA) and the California Administrative Procedures Act (APA) require State agencies to adopt or modify regulations through a fair and open process, whereby everyone who is interested in the outcome may participate in the process, and whereby the agency is required by law to carefully consider all relevant material brought forward by the public and finally adopt regulations which resolve perceived problems in such a manner that creates the least amount of difficulty upon those persons who will be affected by the regulations. The process is especially designed to prevent extremist groups from hijacking the system. The documents in the DFG files clearly show the CEQA process was followed when our suction dredge regulations were adopted in 1994. The extremist groups were present. But their concerns were weighed against ours, and final decisions were based upon science which was available for everyone to see.

For lack of being able to come up with a more accurate characterization, I am referring to this present situation as a reverse-CEQA. Here, we have DFG and the Karuk Tribe secretly going behind closed doors and working out how they are going to modify our suction dredge regulations. And now, they are refusing to give us any of the biological information (if it even exists) that they have used to justify the modifications! This is exactly what CEQA was meant to prevent; a case where an extremist group has completely hijacked the system!

Our attorneys are working on it. Our briefing papers to the Court are due in on this upcoming Tuesday (10 January). Then I suspect both DFG and the Karuks will respond with their own briefs. Then we will probably reply.

It is going to be interesting to see how both the Karuks and DFG will try to convince the Court that the miners have no right to intervene in the litigation. Stay tuned, because we will be posting the briefs as soon as we have them!

Meanwhile, once again, I am putting out a request for legal donations. To date, we have brought in around $3,000 since this thing started. I want to express my sincere thanks to everyone who has contributed!

The bills for December legal work will be arriving at any time. My guess is that we will need to raise more money just to pay those. Our attorneys did a lot of work for us last month! This month’s work by our attorneys is really going to run the costs up, because of the exchange of briefs just starting this week, and because of the Court hearing on the 26th.

You guys know that gulping feeling you get when you are spending more money than you have? That’s the way I am starting to feel!

The law is on our side in this matter. Winning is mainly going to be about raising money to pay the specialists on our side to make good presentations to the persons who will ultimately decide the outcome.

You know, if we could just get a $10 donation from every person signed up on this forum, we would be in great shape at the moment!

Thanks for whatever you can do.

Dave Mack

 

 

The New 49’ers Prospecting Organization

27 Davis Road, Happy Camp, CA 96039
(530) 493-2012
www.goldgold.com

U.S. Forest Service
Attn: Director, MGM Staff
Mailstop 1126
Washington D.C. 20250

6 July 2007

Comments on proposed clarification, 36 CFR Part 261:

Dear Sirs,

Our organization presently represents 1,300 active, concerned small-scale prospectors who utilize USFS lands for exploration and development of valuable minerals. While some of our members may submit their own comments, most of them look to our organization to provide comments on their behalf. We are aware that other prospecting organizations have already commented concerning the legalities of what you propose to do. So we will confine our comments to some practical concerns having to do with operations in the field. Thank you for allowing our organization to express the following comments:

1) While we do understand that district rangers desire to possess an enforcement mechanism to more-easily deal with some small percentage of mineral operators (or persons masquerading as mineral operators), we are worried that some districts will abuse the enforcement mechanism to make it even more difficult for legitimate mineral operators to prospect and develop valuable deposits on USFS lands.

Several years ago, when the Final Rule concerning Section 228 was adopted, we were promised by USFS Minerals Staff in Washington D.C. that there would be a very strong effort to ensure that only fully-trained minerals officers would be allowed to manage minerals operations, and such officers would be trained that existing laws instruct USFS to encourage mineral development on the public lands. We were assured that the abusive policies (against mineral developers) adopted by some district and regional USFS staff would be eliminated as a result of an internal push from Washington D.C., mainly through a well-organized educational program.

Years later, we still find ourselves at the hands of some USFS staff that are continuing a hostile management policy towards mineral developers. This is especially true in Northern California with management from the Orleans Ranger District, where the minerals officer (Leslie Burrows) has gone so far as to inform members of our organization that even the activity of gold panning would require a formal NOI which would take as long as 6 months to process before the activity would be “approved.” This, even though gold panning is specifically excluded from any NOI requirement! Miss Burrows and the Orleans District Ranger well-know that hand mining with a gold pan does not require any NOI or approval process from USFS, but they have clearly chosen a policy of discouragement (towards mineral developers), especially to new persons within our industry who are fearful of being in trouble with the authorities. Leslie Burrows is a bully towards mineral operators, and District Ranger, Bill Rice, has made it very clear to members of our organization that he personally has a policy of discouraging mineral operators, because his personal priority is to “protect” the needs of the Karuk Tribe. As part of this discouragement, the Orleans District has implemented a program of placing substantial barriers of dirt and gravel across the road access points to mining claims within the Orleans District where claim owners are able to camp on their own claims. I can send pictures if you would like to see them. Unquestionably, this district has adopted a deliberate and aggressive policy of preventing prospectors from camping upon their own mining claims!

I use this example of the Orleans District to show to what extent, in some places, that USFS district rangers and minerals staff will go to deliberately discourage mineral exploration on the public lands. While the Orleans District provides some of the best mining prospects within the Klamath National Forest, our organization has completely withdrawn all mineral exploration activity from the Orleans Ranger District because the existing district ranger there (William Rice) and his staff, as a matter of very firm policy, deliberately discourage mineral activity.

It would be naïve to believe that Orleans is the only district within the USFS system that has adopted a policy of discouragement towards small-scale prospectors. Providing these districts with a penal provision will allow them yet another tool to push legitimate prospectors out of their districts. This would not be beneficial to the public interest. While I am only guessing at this, I suspect the USFS staff that is pushing Washington Minerals the hardest for a penal provision, are the very staff that are opposed to mineral development within their districts!

With these comments, we are encouraging Minerals staff in Washington to carefully weigh and balance the costs and benefits of creating a penal provision as proposed. How many serious problems really do exist with mineral operators right now that cannot be managed with the civil remedies? Are there any at all? What are the cost of these problems to the surface and environmental values which the USFS is charged to protect? Would there be much additional cost in just continuing with the existing civil remedy, rather than with a penal remedy (where a violation of Section 228 must be proven beyond a reasonable doubt)? Do those costs outweigh the losses to future productive activity on USFS lands which are sure to result from abusive policies in districts which are hostile to mineral development?

Washington Minerals staff is well-aware of the problems small-scale miners have in districts which are hostile to mineral developers.

I would point out that it was the abusive discouragement policy of the Orleans District which brought about the Decision in McClure which undermined the penal provision in the first place. This is important to consider. Because, giving district rangers a penal provision within Section 261 to enforce the provisions of Section 228 will still not resolve the basic problem which some district rangers are trying to solve (which is to push miners out of their districts).

The penal provision was defeated in McClure in the preliminary hearing. Had that been overcome, the Orleans District still would have had to overcome the burden of proving that Mr. McClure was required to obtain an approved Operating Plan. They would have had to prove he was creating a substantial surface disturbance. We don’t believe Orleans would have won that case.

Sometimes, it seems like the Ranger believes that just writing the criminal citation is the solution that will solve everything. I am pointing out that had the McClure case gone to a hearing on the merits; there is a reasonable chance that the end result would have been worse for the Forest Service than the loss of your penal provision. If not from Washington Minerals, then some language will have to come from the Courts that mineral operators cannot be turned out of the forest just because district staff object to the activity!

Those of us that are aware of the intent of congress and the language of Section 228 believe that giving district rangers a penal solution to try and discourage mineral developers will only make the problem worse. The only thing that will solve this problem is better management and education of district rangers and minerals staff from Washington D.C. Perhaps this will only happen after more litigation and direction from the Courts.

Our suggestion: If you are going to provide districts with another tool which could be used to further-discourage mineral development, please also create some very clear language to help prevent abuse. Promises of more and better training and direction from Washington have not produced results! Rather, we would like to see some clear language added into the proposed clarification which makes it more clear that the penal provision cannot be used to prevent any legitimate mineral-related activity which does not rise to the level of a substantial surface disturbance (as clarified within Section 228) which the district ranger or minerals staff must be prepared to prove when prosecuting a criminal citation.

An answer that Section 228 already clarifies this is not good enough. Definitions and exclusions differ between Sections 261 and 228, which will most certainly cause confusion and conflict. We suggest, if Section 261 is going to include a penal provision as a remedy for unauthorized mineral activity or associated occupation, there also needs to be some additional language in Section 261 which clarifies that mineral and associated activity is managed under Section 228; that Section 228 defines when authorization is required; and that those definitions revolve around what constitutes a “substantial surface disturbance.”

This would help district rangers with a tool to more-easily deal with people who are not legitimate mineral operators, or those who need to be brought into a formal Operating Plan when their activities rise to the level of a demonstrable substantial surface disturbance. At the same time, such language will require district staff to possess some level of proof (of a substantial surface disturbance) before issuing a criminal citation.

2) It is necessary for some mineral operators to occupy the national forest, sometimes for extended periods of time. Placing an arbitrary time limit upon how long a mineral prospector may occupy the forest would be counterproductive to the intent of existing mining law. Imposition of a 14-day camping limit upon a prospector who is actively searching for or developing mineral resources in the forest would be an arbitrary and capricious management in context with controlling case law that directs USFS to encourage mineral development.

What happens after the 14 days are up? If the prospector relocates his camp, do district staff then take it to the next step and tell the prospector he can only remain in the forest for a total of 30 days during a year? This would be very unreasonable in the context of “encouragement.”

With today’s cost of fuel and private lodging facilities, forcing a prospector to travel and reside in private facilities while prospecting for valuable mineral deposits some distance away will create economic hardship that would discourage a substantial amount of mineral prospecting. Preventing mineral developers from occupying mining claims while actively working them can create security issues (theft and vandalism of equipment) which will discourage a substantial amount of mineral development. This is especially true, being that any other person would be free to occupy an active mining claim for 14 days without special authorization. Telling a miner that he must abandon his equipment, while others would be allowed to occupy the same location, would be a very unreasonable policy in view of the substantial investment required to develop mineral deposits these days!

If the USFS has a policy of allowing any person to reside within the forest for up to 14 days without special use authorization, what is the problem with allowing mineral prospectors to reside there for longer periods, as long as they are not creating a substantial surface disturbance through the combination of the camping and mineral activity? Once again, we are back to the definitions and clarifications provided in Section 228. A prospector must have the right to look after his or her investment!

While we understand that district staff need a mechanism to deal with problems which can become substantial (sanitation, trash, accumulation of junk, equipment or other belongings) when some prospectors stay around longer, we believe the “substantial” language in Section 228 already addresses this. Let’s please not impose arbitrary time limits upon prospectors whose personal imprints upon the forest are not adding up in this way.

Once again, we believe the “substantial” concept in Section 228, coupled with the penal provision, would allow district staff the necessary mechanism to manage problems which get out of hand, while allowing prospectors who are doing things neatly the freedom to keep prospecting or developing valuable mineral deposits with minimal cost and risk.

While Washington Minerals Staff might not have any intention of imposing a 14 day camping limit upon prospectors, I can tell you with clear certainty that some district rangers and staff certainly do! The Orleans District routinely informs prospectors that they must either leave after 14 days or obtain an approved Operating Plan (which the Ranger says will require at least a year to process). Prospectors in Orleans are routinely threatened with penal consequences (if they camp longer than 14 days), even though no penal provision presently exists!

So it is greatly important for Minerals Staff to make USFS policy concerning camping limits clear in language. Otherwise, it will surely have to be worked out in litigation. To not clarify the issue at this phase would imply that USFS is deliberately being ambiguous concerning how long a legitimate mineral operator may occupy the public lands. This would be an invitation for conflict.

3) About your proposed language in Section 261.10 (p) “Use or occupancy…without an approved operating plan when such authorization is required:”

Once again, we suggest there is need for further clarification in (p) that some types of mineral-related activity do not require either a special use permit or an approved operating plan; and that the distinction revolves around when the mineral-related activity rises to the level of a substantial impact upon surface resources as covered in Section 228.

Just as importantly, or perhaps even more so, we strongly encourage you to include some language which clarifies that special authorization is only necessary for the specific part of the activity which requires it.

As an example, if the USFS decides to assume a position that any camping beyond 14 days by mineral operators will require an operating plan or special use permit, you should not require the remaining part of the mineral program to be subjected to the operating plan requirement if no operating plan would be required if there was no extended camping. Case in point: A person who is using a metal detector to locate mineral specimens, under normal circumstances, would not even be required to provide Notice. Therefore, the person’s electronic prospecting activity should not be raised to the level of an approval process just because he or she desires to camp on the mining claim for an extended period of time. If USFS insists that extended camping will require an approved operating plan or special use permit, the approval process should only concern itself with the camping.

The reason this is important is that gaining approval of an operating plan within an area where special concern species or other special designations exist usually requires consultation with other agencies. The process can take many years to complete (if ever). In fact, the consultation process takes so long to complete, that the requirement of an operating plan in many areas basically amounts to a prohibition of the mineral activity! I’m sure Washington Minerals staff is well-aware of this.

We are suggesting that it would be a bad idea to lump a mineral activity which is being allowed under a NOI into a full operating plan/consultation program simply because the operator wants to spend longer than 14 days camping on his or her mining claim (safeguarding expensive equipment) while developing an underwater gold deposit.

This same concern extends to the subject of special use permits for camping or other activities that are related to a mineral program. As an example, our organization has worked hard and long to adjust our cumulative mineral activities into a program which the Happy Camp Ranger allows under a NOI. But the Ranger has told us that if we want to charge money to teach prospecting in his district, we will need to obtain special use authorization which will trigger a full consultation process – even though none of the activity would rise beyond the level of what is already being allowed under our NOI. So the additional activity of teaching would undermine our entire program in the forest, even though it would not increase the environmental impact. Here is an example of where overlapping regulations can completely undermine an otherwise allowable and productive activity!

If encouragement of mineral activity is the aim, it would be a bad idea to impose a “special authorization” requirement upon mineral operators that will automatically trigger costly and lengthy consultation processes, simply because the mineral operator wants to camp on his or her mining claim for longer than 14 days or do something else with requires special authorization, but does not increase the level of environmental impact.

Once again, since USFS is managing the surface resources, when it comes to mineral operators, we encourage you to manage our impact upon the surface resources, rather than try and push prospectors out of the forest after some arbitrary time limit.

To avoid abuse and conflicts, we encourage you to clarify these important concerns with additional language inside of Section 261.

Sincerely,

Dave McCracken
President, The New 49’ers