THIRD QUARTER, MID-AUGUST 2009 VOLUME 23, NUMBER 8
By Dave McCracken General Manager
As most of you have probably heard by now, Governor Schwarzenegger has signed Senate Bill 670 into law which has placed a statewide moratorium on suction dredging in California until the Department of Fish & Game (DFG) completes an updated Environmental Impact Report (EIR). This EIR process has already begun. Under the present schedule, public hearings will begin in November of this year. DFG is presently projecting to complete the process by the spring of 2011. If they remain on schedule (unlikely, in my own opinion), this means we will only miss a single dredging season in California.
We were very disappointed that Governor Schwarzenegger signed SB 670 into law after our entire industry pulled together in an enormous, unified effort to persuade him to veto the bill. Altogether, tens of thousands of messages were directed to the governor in the form of orange post cards (the industry printed and distributed more than 50,000 of them), emails, faxes and telephone calls. Several California legislators also pushed very hard behind the scenes for a veto; but in the end, our combined efforts were not able to make it happen. For more information about how this all played out, here is a final summary from our main lobbyist.
Since the new law went into affect immediately, DFG wardens have been busy on the river politely informing suction dredgers that the law has changed and they must stop. To my knowledge, no citations have been written. I gather that some people are still operating their dredges, since they have not yet received formal notice that their existing permits have been cancelled.
Just in case you didn”t know, this new law only stops suction dredging within California”s active waterways. It does not have anything to do with the other types of prospecting or mining that we do in California. Unaffected prospecting activities include panning, sniping & Vack-mining, sluicing & high-banking, booming, electronic prospecting and other types of prospecting that do not use a suction nozzle within an active stream, river or creek. It also does not affect our group weekend projects.
We are Immediately Implementing a 3-Pronged Solution for California Suction Dredgers
As we are not very good at sitting around complaining, here is what we are doing:
We have already lined up specialist-biologists on our team who are ready to participate as the process moves forward. Our lobbyists are already busy soliciting assistance from the friends we have in the California legislature. Hopefully, some of their aids will also participate in the process, helping us to keep things on a “fair and balanced” approach and moving along towards completion as soon as possible. Our attorneys are continuing to pursue remedies in the Alameda Superior Court to help move the process along.
We will be actively involved with the Administrative process, pushing it towards completion while fighting to prevent unreasonable solutions (regulations) from being imposed upon our industry. Ultimately, if we do not overcome the new law (outlined in solution number 2 just below), completing the Administrative process is going to get dredgers back in the California waterways. We are right on top of this.
2) Challenging the New Law in Federal Court: In anticipation of the possibility that SB 670 might be signed into law, several months ago, we asked our attorneys to perform legal research, to prepare ourselves for a challenge in federal court to overturn the new law. This new law is clearly flawed, and there is a reasonable chance that we can overcome it. As always with legal matters, I have to try and give our supporters enough to keep you informed, but not so much that we tip off our adversaries (who read every word published on every Internet forum having to do with mining).
To help with an explanation, here is a summary which our lead attorney just wrote up.
My sources are telling me that even the U. S. Forest Service (USFS) is likely to take the position that the Mining Law, Organic Act and their own Section 228 regulations pre-empt the new California law. I am hearing that USFS is expected to decline to enforce the new law and will continue to allow suction dredging on USFS lands. California may try to enforce it, but the USFS will not and will not accompany California officials in the field. My understanding is that USFS is taking the position that the U.S. Supreme Court case known as “Granite Rock“ directs only reasonable state environmental laws “of general applicability“ can apply to operations authorized by the Mining Law. It says that state or local regulations or laws “cannot say no“ to mining activities on federal public or National Forest land that comply with the Section 3809 or Section 228 regulations, respectively. The Granite Rock case originated in California.
Under existing federal law, mining is the priority-use of the public lands. Regulations can only be imposed to lessen unnecessary impacts. Regulation cannot be used to prohibit mining. There is a lot of existing, controlling case law on this. Yet, without any proof that a single fish was ever harmed by suction dredging in California under our existing suction dredge regulations, the State just passed a new law which declared the activity as “harmful,” and prohibits suction dredge mining until such time as the activity can be further studied with new regulations imposed upon our industry.
Our federal challenge will be to try and prove that a state does not have the authority to prohibit or impose unreasonable regulations upon mining on the public lands. The outcome of this challenge will most likely have an important impact upon mining in all of the states. So we must be very careful about what we do. If we win such a challenge, it is reasonable to expect the states to back off on all the unreasonable regulation of mining activity within their borders. Winning would solve a lot of problems for miners!
If we lose such a challenge, we can expect the states to step in with even more unreasonable regulations upon mining.
This leads me to the subject of how we will pay for a challenge of this new law in federal court. Since I must provide
a personal guarantee of payment to the specialists that we hire, I need to have some certainty that there are enough supporters on our team who will help New 49’ers cover the costs. This, so I don”t make the fatal mistake of picking a fight that we cannot finish!
Just to give you an idea of how fast the legal costs add up, our legal bills in the month of April (not counting what we pay to our lobbyists) added up to $27,000. We are still making payments on those. April was a very busy month for our attorneys, when they were trying to overcome an attempt by our adversaries to impose a preliminary injunction on the issuance of new suction dredging permits in California. The passage of SB 670 ultimately made that a moot point, but we still had to fight it at the time ” and we still must pay our attorneys.
The bottom line is that we must receive a substantial showing of support from the industry before I will commit our attorneys to launch a challenge in federal court to try and overcome the new anti-dredging law in California. As most of the industry manufacturers (and others) are supportive of a federal challenge, we have pulled together a very substantial list of prizes for this new fund-raiser:
The donors of these prizes have authorized our office to automatically generate a ticket in your name for every $10 legal contribution we receive ($100 would generate 10 tickets, etc). There is no limit to the size or frequency of your contributions, or to the number of prizes you can win. The drawing will take place on 4 January, 2010 at our offices in Happy Camp, California.
Legal contributions can be arranged by calling (530) 493-2012, by mailing to The New 49’er Legal Fund, P.O. Box 47, Happy Camp, CA 96039, or by clicking on the link below.
Just so you know, I understand that Public Lands for the People (PLP) intends to mount their own federal challenge to the new anti-dredging law in California. PLP and The New 49’ers have worked in concert in successfully defending against several legal challenges to the small-scale mining industry during the past several years, both in the California and federal court system. Because we hire separate attorneys in these legal actions, some people have expressed concern that we are not as organized as we might be. I would like to answer to that concern: It is not that we are opposed to each other. In fact the two lead attorneys work closely with each other and support each other’s efforts, and by doing so are able to present legal theories that are not exactly the same, but push toward the same goal.. There is not a “right” or “wrong” in the different legal theories, or in the differing approaches which our separate attorneys make. When we are fighting over really important matters like the legacy of more than 150 years of small-scale mining in California, I personally believe that more is better. Going into it, you never really know which legal theory is going to work!
Asking the “federal supremacy“ question in federal court will most certainly affect the future of all small-scale mining (and probably even large-scale mining) in America for the foreseeable future. In my view, the responsibility is too large to place on a single attorney who is being managed by just one or two people from the whole industry. Better, I think, to get more organizations and more specialists involved with this. With your support, we are ready to play. Our attorneys are as good as you can find! We would like to see other organizations also actively participate.
This latest fund-raiser is going to be the decision-maker concerning New 49’er active involvement in a legal challenge to California”s new anti-dredging law. We will make the decision based upon how much initial financial support that we receive from you guys. By sending in something right away, let”s please agree that you will send in more support later when I call for help? We need to know that we are not in this alone. I”m sure you guys understand my concerns.
Thanks for whatever you can do!
3) Working out Suction Dredge Opportunities in Oregon:
Please click here for full report!
Since the main mission of The New 49’ers is to help provide gold mining opportunities for our members, and there presently is no guarantee we will be dredging in California for the next season or two (or more), we are very busy at the moment surveying a substantial section of gold-bearing waterway in Southern Oregon which is open to suction dredging. Oregon”s annual suction dredge permit presently costs $25 per year for both residents and non-residents.
I am hearing good reviews about gold recovery on the waterway we are presently looking at. But I prefer to confirm results by personal experience, rather than take a chance on recommending a location to members where you guys might not do well. So myself and an team of experienced dredgers (members) will already be busy sampling even before you guys read this. If results are positive, the girls in our office will be informing members who enquire (530 493-2012), and we will be following soon with much more information.
“Ongoing dredge-sampling in Southern Oregon”
Just to put an answer to the rumor that has already started, we do not intend to abandon California. We possess the mineral rights on 60+ miles of excellent gold-bearing properties there; something that took 30 years to accumulate! So while we fight it out in California (with your support), we will do our best to arrange more suction dredging opportunities just over the border in Oregon for our members.
Meanwhile, as you know, we continue to have the best high-banking opportunities anywhere along the Klamath River in Northern California for members who prefer prospecting for gold above the water.
Conclusion: The New 49’ers is actively pursuing the Administrative process that will certainly open suction dredging in California once completed. If you guys are willing to support legal action, we are prepared to launch a challenge in federal court over California”s new anti-dredging law. Meanwhile, we are working hard to arrange suction dredging opportunities for our members in Southern Oregon.
