FIRST QUARTER, JANUARY 2016 VOLUME 30, NUMBER 1
Newsletter By Dave McCracken General Manager
As many of you are aware, California passed a new Water Quality law last year which went into effect at the beginning of 2016. Senate Bill 637 has modified California’s suction dredging law under Section 5653 of the Fish & Wildlife Code to require a Water Quality Permit or Waiver before a dredging permit will be granted. You can find the language of SB 637 right here.
The language of SB 637 allows several ways to obtain the Water Quality Permit or Waiver. Because some federal Waivers are already in place for suction dredging, it is confusing at this point which, if any, additional steps are necessary to obtain a suction dredging permit. Several of our most qualified members have devoted the past two months trying to figure it all out. We have consulted extensively with the leaders of the other industry associations in California, and with our attorney, and even with local law enforcement personnel inside of the Department of Fish & Wildlife (DFW). All I can say is that no two people have the same view of how SB 637 will affect California suction dredgers – and/or those of us that are doing small-scale motorized prospecting activity outside of the active waterways. Here follows some of the key language in SB 637 that everyone is struggling with:
It is unlawful to possess a vacuum or suction dredge in areas, or in or within 100 yards of waters that are closed to the use of vacuum or suction dredges.
For purposes of this section and Section 5653.1, the use of vacuum or suction dredge equipment, also known as suction dredging, is the use of a mechanized or motorized system for removing or assisting in the removal of, or the processing of, material from the bed, bank, or channel of a river, stream, or lake in order to recover minerals. This section and Section 5653.1 does not apply to, prohibit, or otherwise restrict nonmotorized recreational mining activities, including panning for gold.
The reason we struggle is that there are a lot of prospecting and other activities that have nothing to do with suction dredging, but which use the same or similar gear that we use in dredging, and in particular use motorized equipment. If so, that would put an end to a big part of California’s sand gravel mining industry. Since the language is somewhat ambiguous in its meaning, we are supposing that “intent to operate a suction dredge” is required.
For example, a suction dredge is not allowed within 100 yards of an active waterway if it is closed to dredging. We get that. But what about the same kind of motorized pumps or gold recovery systems if there is clearly no purpose to operate a suction dredge? How about a motorized hookah system that does not have a pump attached to it? That gear, without the rest of the essential gear to make up a dredge, does not amount to “suction dredging”. How about a motor on a boat, ATV, electric generator, motor vehicle and many other devices that we may use to support dredging, or many other activities which have nothing to do with suction dredging?
Most telling about what the legislature’s intent can be found in Section 5653.5 of Fish & Wildlife Code:
5653.5. For purposes of Section 5653, “river, stream, or lake” means the body of water at the current water level at the time of the dredging.
We think this means that the focus of enforcement efforts will be use of motorized equipment to recover minerals in the water. We have looked into what it takes for an individual to obtain water quality certification for “waste discharges” into the active waterway. These processes were designed for meaningful discharges far in excess of what we do in small-scale mining. The processes are time consuming, lengthy and expensive; something few, if any, casual users are likely to do.
In looking over the language of SB 637, we also noted the following language:
Section 13172.5 is added to the Water Code, to read:
13172.5. (c) (1) Before determining what action to take pursuant to subdivision (b), the state board shall solicit stakeholder input by conducting public workshops in the vicinity of the cities of San Bernardino, Fresno, Sacramento, and Redding. A regional board considering independent action pursuant to subdivision (b) shall solicit stakeholder input by conducting at least one public workshop in that board’s region. To promote participation in the public workshops, the state board or regional board shall proactively reach out to mining groups, environmental organizations, and California Native American tribes, as defined in Section 21073 of the Public Resources Code.
(2) Before taking a proposed action pursuant to subdivision (b), the state board or regional board shall conduct at least one public hearing regarding that proposed action pursuant to the Bagley-Keene Open Meeting Act (Article 9 (commencing with Section 11120) of Chapter 1 of Part 1 of Division 3 of Title 2 of the Government Code).
(3) To avoid duplication of efforts between the state board and a regional board of a public workshop or public hearing that covers the same regional area, the state board and a regional board may work in collaboration to share information obtained through the public workshops or public hearing.
It seems reasonable to assume that nothing really changes until the California Water Board conducts some public meetings and consults with the small-scale mining community. As far as I know, the State has not scheduled anything on this, yet. Therefore, in view of the uncertainty over how the State believes it should enforce SB 637, until we get written clarification from the State, we are making the following assumptions:
1) We do not believe that the legislature intended to prevent all motorized mining-related activity within 100 yards of waterways (that are closed to dredging) just because many, many activities can be identified that have nothing to do with suction dredging, but which use some of the same or similar gear that dredgers use. Existing 5653.5 defines suction dredging as something which takes place within an active waterway. This is true. I am not aware of any reasonable person who would suggest that something is really suction dredging if it is happening outside of an active waterway.
In my view, if the law is not going to be applied to sand and gravel plants that are doing large scale mechanized excavation of minerals, how can it be applied to recreational-scale miners that are using a small motor; but have no intention of suction dredging? How about using a vacuum cleaner to suck the gold from dry cracks in exposed bedrock up out of the water? There is no way a dry-vack can be used in the active waterway, right?
So for the time being, we will move forward on New 49’er properties with the assumption that SB 637 does not apply to any other type of the traditional prospecting activities we do that do not require a complete suction dredge.
2) The new Water Code Section 13172.5. (c) (1) directs that they cannot move forward with any of the proposed actions pursuant to subdivision (b) until there is some coordination with the mining industry. Therefore, we are actively working on setting up an initial stakeholder meeting with staff from the California State Water Resources Control Board.
If the outcome from this makes it clear that New 49’ers should apply for a permit or waiver that will provide a water quality certification covering all the properties we manage, that’s what we will do. We will keep you guys informed of the progress.
3) Since SB 637 does seem to apply only to suction dredging, if you want to operate a suction dredge in California during 2016, I suggest it may be a good time to begin asking the U.S. Army Corps of Engineers or the California Water Board exactly what will be required of you to qualify for an individual water quality certification so that you can obtain a suction dredge permit.
It may be that there is little you can do, especially since both the Corps and the State have authority to grant state-wide or regional certification that applies to the times and places when suction dredging is allowed under California’s adopted suction dredging regulations. My guess is that this will happen faster if everyone who wants to dredge in California sends a written query to: State Water Resources Control Board, P.O. Box 100, Sacramento, CA 95812-0100. “Dear Sirs, I understand SB 637 may affect my hopeful application to obtain a suction dredge permit in 2016. Can you please provide me with details on how to proceed?”
Some New 49’ers and others within our dredging industry are already moving forward on obtaining individual water quality certifications or waivers in support of their suction dredging plans for the coming season. As I mentioned above, different approaches are being used. Long time very supportive member, Steve Kleszyk, is very informed on this effort and is actively pursuing individual authorization (if required at all) to suction dredge on the Klamath river this season. He has offered to provide opinions and assistance to anyone also wanting to get moving on this. Steve can be reached at email@example.com. It may be a week or two after this mailing for him to have something worth passing on but he is working diligently to get the best possible answers according to his understanding.
The good news is that SB 637 may be the door to get hassle-free suction dredging going again in California. Some more time and effort will bring us the answer to this.
Other Legal Updates
The Rinehart case is waiting for a Decision by the California Supreme Court. You may recall that the California Third Appellate Court found unanimously for suction dredgers in Rinehart. Several large-scale conservative natural resource advocate associations have supported our arguments to the California Supreme Court. At the same time, several prominent anti-resource development organizations and individuals have weighed in against small-scale mining. This case is all about whether or not federal law prevents the State of California from imposing material interference upon mining or prospecting on the public lands. It is perhaps the most important litigation concerning American mining in our lifetimes.
In a separate set of cases, we have switched gears into appealing San Bernardino Superior Court’s recent Ruling to deny any meaningful relief to suction dredgers even after the court has ruled and ordered that California’s suction dredge moratorium is unconstitutional. As you may recall, our initial Motion for a Statewide Injunction to prohibit California from enforcing the unconstitutional moratorium and return us to the earlier set of regulations that were legal was recently denied by the Superior Court of San Bernardino. We believe that Ruling was flawed, and have now appealed to California’s Forth Appellate Court to get our motion approved. As you will see from the link just above, our appeal is being bitterly contested by anti-mining activists.
And in a more recent, surprising development, the State attempted to criminally prosecute New 49’er members, Derek Eimer and Dyton Gilliland in Siskiyou Superior Court (suction dredging in California without a permit). Our attorney, James Buchal, did a wonderful job motioning the Court to dismiss all charges. You can see all the arguments right here. The hearing (Motion to Dismiss) took place on 5 November. Rather than dismiss the charges, the judge placed a Stay on any further attempted prosecution of suction dredgers in Siskiyou County until the California Supreme Court issues a Ruling in the Rinehart case. The judge said she will sign an Order for a return of all equipment that was seized from Derek and Dyton by Department of Fish & Wildlife wardens as long as the dredges are not used in Siskiyou County until the case against them has been resolved.
So it would appear that the rights of suction gold dredgers in California will continue to hang in the balance until the California Supreme Court weighs in. Here is a link to a Summary provided by our attorney.
Judge Ochoa in San Bernardino will decide in a hearing on January 20th on the arguments by suction dredgers that the State of California did not follow the Administrative Procedures Act when they developed the 2012 suction dredging regulations. Western Mining Association (WMA) deserves most of the credit for providing a really well done effort on this. The outcome could affect the new water quality law in California (which is largely based upon the very same results which we are challenging). We are also motioning for the San Bernardino Court for Summary Judgment to declare that the second and third suction dredge moratoriums are unconstitutional, that the requirements of the first moratorium have been met — therefore requiring California to resume issuing suction dredge permits.
A group of mining associations, business, and individuals in Oregon have banded together and hired James Buchal (same attorney who has been representing us and others) to challenge Oregon’s 5-year suction dredge moratorium which is supposed to go into effect in January of 2016. The case is so cut and dry on the basis of established federal law, the miners have asked the federal court for an expedited summary judgment in hopes of saving their 2016 season. You can find the legal arguments here.
It will be interesting to see how the federal court in Oregon deals with the federal preemption argument. Because, after 7+ years of getting the runaround by the State of California, I believe the time is about right to ask for some intervention by the federal court.
New Legal Fund Drawing
This is to announce the newest Legal Fund Drawing – which will be for 3 ounces of American Gold Eagles and 10 ounces of American Silver Eagles. As most of you know, these Legal Fund drawings are how we generate most of the funds necessary to defend the rights of small-scale gold miners.
The drawing will take place at the close of business at New 49’er headquarters in Happy Camp, California on 26 February. You do not need to be a member of our organization to participate. You are welcome to be at the drawing, but you do not need to be present to win.
Our office will automatically generate a ticket in your name for every $10 legal contribution we receive ($100 will generate 10 tickets). There is no limit to the size or frequency of your contributions, or to the number of prizes you can win.
All contributions to The New 49’ers Legal Fund are tax deductible.
Once again; thank you guys very much for standing behind us!
Updating The Billing System in our Offices
We have hired a specialist to resolve problems with our monthly and annual billing system. The only way to know we have everything the way it belongs is to get feedback from members. If your billing seems incorrect, please don’t hesitate to call Bonnie or Music in our office: 530 493-2012.
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The New 49’ers Prospecting Association, 27 Davis Road, Happy Camp, California 96039 (530) 493-2012 www.goldgold.com