Jump to content
Nugget Shooter Forums

Archived

This topic is now archived and is closed to further replies.

old gold miner

SB 670 Ca dredge ban

Recommended Posts

This post just keeps getting better and better. Keep up the really great work Old Gold Miner. Thanks.

Share this post


Link to post
Share on other sites

When it comes to "making" the laws, the California Legislature is strongly influenced by groups that are very biased and prejudiced against just about anything that is related to mining even if no scientifically respectable evidence supports that bias. Miners and mining have no special protected status to protect them from legislative discrimination outside of a few federal laws like the Mining Act of 1872. The judiciary will give great deference to the wisdom of state legislatures [a legal fiction, but nonetheless the way courts analyze legal arguments involving attacks on state legislation]. So its not a slam dunk that a federal court will issue injunctive relief or that a federal jury will issue a judgment for money damages. However, it definitely is worth pursuing. The type of fact intensive and scientifically respectable information that is being posted on this thread is the best ammunition we as a group will have to load our legal guns in a final showdown. But, in the federal wings don't lose sight of the inexorable progress that Congress is making toward amending or replacing the Mining Act of 1872. Any and every opportunity to communicate with a Congressman or Senator or his or her staff should be taken NOW -- not when a bill is already being sent to Obama for signature.

Share this post


Link to post
Share on other sites

http://www.mininglawinternational.com/Comp...ston-Case18.pdf

Read the link above.

SB 670 will go down in smoke, once contested in Federal court.

Ponder, if it isn’t grow, or harvested from the ocean, one way or another it comes from MINING. Look around you, right now. The glass in your window is silica, sheetrock is gypsum, cement is made of limestone, wires that transport electricity are mined metals. Fact is: if everything that was mined disappeared with a snap of a finger, civilization as we know it, would collapse in an instant.

Every vehicle that transports all things, is impart made from things mined. Every ship, airplane, train, truck, car or vehicle is made from things mined. Modern agriculture is dependent on phosphate fertilizers that are mined. Electricity would not exist, if it were not for things mined, that make electricity possible. Metals in all things are mined. Without mining, 2/3rds of the worlds population would die off, within 3 years, from starvation.

The 1872 mining law, gave this Great Nation the ability for free enterprise to provide us the means to fight/win WW1, WW2, become the leading economy in the world & maintain that position. Because, America’s mining laws are the most environmentally conscientious & productive in the WORLD. Now, uninformed politicians want to fix a law, that isn’t broken, as this Nations position as a world leader proves.

Those politicians that denounce the 1872 mining law, as containing no environmental protection, might well take NOTICE of the 2,183 (by my count) other in effect environmental laws that supplement it, to protect America’s environment. Those that say the 1872 general mining laws are outdated, should reread the Constitution of these great United States. How old is it? Much older than the 1872 mining laws. It is NOT outdated & in fact establishes the very RULE OF LAW that makes this Nation GREAT.

Share this post


Link to post
Share on other sites

Old Gold Miner. Thanks for all the research and info.This is by far the best info to be given to our represenatives as soon as possible.I guess they will be busy trying to convalute the law,I hope you are correct on there wisdom,It is a travasty to say the least,Thanks and keep it coming as you find it :bowdown: :bowdown: :whoopie:

Share this post


Link to post
Share on other sites

I am a retired mining engineer, that along with family members still placer mines.

I have fought stupid or illegal mining reg's/rules for 40 years.

So, most of this is in my files.

SB 670 takes the cake.

A RULE OF THUMB, I learned long ago.

Out in the field, if ever you are confronted by unfriendly USF/BLM ranger about anything.

Be calm, polite & professional.

Right off, tell them, you will discuss sports, religion, current events, even women.

But you will not discuss your mining operation.

If they have anything negative to say about what you are doing., or want you to halt doing something

Politely request the put it in writing, on official stationary, sign & mail it to you.

That cuts out 99.9% of the BS.

Because, if they put “whatever” in writing & send it to you.

If they are WRONG, you can hold them responsible & liable for damages (if they caused any).

FEDERAL TORT CLAIMS ACT

http://www.quintonpetix.com/fedtorac.htm

http://www.law.cornell.edu/uscode/28/ch171.html

Let me assure you, sometimes these guys can get STUPID.

Once, we used a 580 case backhoe to dig a deep hole, built an out-house on skids & positioned it over the hole.

The use was obvious, practical & temporary.

Young USFS idiot, said we had no permit, remove it.

LOL, I told “idiot” it is permissible to take a “dump” in the woods behind every tree, but not permissible to use a sanitary facility, that will be gone, without a trace, when we were.

He stormed off. To avert any possible work stoppage, we quickly tore it down, filled the trench. Went to town, contacted a port-a-potty service & had one in place by nightfall.

Idiot came back 2 days later, to issue me a citation, RE: our unauthorized outhouse.

To find a licensed, bonded , certified toilet facility there, same as USFS contracted with. :innocent0009:

It was not worth a legal battle over a simple sh*t-house.

Another time, hauling pay gravel by dump truck over a small USFS bridge to a wash plant. Since we were right at the weight limit of the bridge, they wanted us to halt mining & built them a new bridge, to spec’s that would have cost $300,000.

Fearing they might close their bridge to dump trucks, before they could blink, we cut logs, skidded them into place, planked it over & had our own bridge, built next to there’s. Which we chained off, so no one else could use it, so we had no public liability. Our bridge costs us about $2000 & we removed it, when we left.

COMMON SENSE SHOULD RULE

Share this post


Link to post
Share on other sites

I felt that you had learned from experiance,s { real life types}

Welcome abord It is great info you have shared with use.Thanks for giving us your time.

I have a few simular stories about the USFS when i was working for a jippo logging outfit.

We used to call them piss fir willy.s

Share this post


Link to post
Share on other sites

RE: SB 670

DRAFT: Affected party

Affidavit in support of Plaintiffs cause of action:

I, and my extended family own unpatented placer mining claims in California, in which we have a considerable investment. In these dire economic times, several family members rely on suction dredging as their sole means of income. By no means, are we recreational miners. Our mining claims were acquired, based on reasonable investment based expectations, that we will profit from having done so. That profit being derived from the sale of placer gold we were previously able to recover from them, prior to the illegal prohibition of suction dredge mining throughout California by SB 670.

All valid unpatented placer mining claims in existence, are situated on federal lands under jurisdiction of the Department of Agriculture (USFS), or Department of the Interior (BLM). Done by federal invitation, having been lawfully initiated under statutory federal grant to citizens providing for mineral entry in accordance with 30 U.S.C. § 21-54. Otherwise, none would exist, as federal land open to such occupation is the only place on which citizens can initiate, maintain, and own this unique type of mineral estate.

Specific regulations of the USFS (36 CFR 228 ), and BLM (43 CFR 3802 & 43 CFR 3809) stringently control all mining operations on unpatented mining claims, to protect federal lands from significant, or undue degradation. Certainly, the state has a right to regulate that use. However, state regulation cannot be unreasonable, arbitrary, capricious, or in direct conflict with overriding federal law.

Placer gold erodes from its originating source rock over millennium, naturally concentrating down slope as gold dust, flakes, and nuggets on, or near bedrock in alluvial gravels of local streams, and rivers. Given that geologic fact, on most placer claims, there is no affordable, practical, or effective way for a person of ordinary means to recover placer gold in profitable amounts, other than by suction dredging.

A compilation of the numerous credible suction dredge studies (See addendum 1) performed over decades by authoritative federal, state agencies, and universities clearly show modern suction dredging, for the most part has only a fleeting negligible, or De minimis effect on salmon habitat ecosystems.

The reality here is, a man made “tragedy of the commons“, caused by massive headwater diversions of water to irrigate California’s agricultural crops, associated pollutant runoff of agro-fertilizer-pesticides, hydroelectric dams, myriad industrial pollutants, logging, commercial fishing, and numerous other human caused degradation of California waterways have all directly caused a massive decline in both habitat, and salmon population..

Man made effects combined with natural forces, I.E., extended draught, El Niño ocean conditions, and predation are plainly the primary cause of the decline of California salmon populations. In comparison, suction dredge mining effects are so minimal they equate to no more than one single grain of sand, in relation to sand dunes, hundreds of feet high, and wide, extending for miles. So small, it is of no practical, or arguable consequence.

Previously, DF&G was court ordered, to complete an EIR of the Klamath basin waterways. Which never was done. DF&G relies on various sham excuses why not. Which justifiably adds great credibility that the SB 670 mandated statewide EIR will never be completed either. Thus, for all practical purposes, the SB 670 ban on suction dredging is indefinite.

Explicitly, all a mining claim proprietor owns, is the vested right to mine the valuable mineral within his estate. Plainly, suction dredge mining is the highest, and best use on the majority of placer claims. To ban suction dredge mining for an indefinite period of time, eviscerates the fundamental purpose of all federal Mining Laws, by rendering it, as a practical matter, impossible to profitably exploit those valuable mineral deposits all placer mining claimants in California own. Exactly as it would be, if a vineyard owner was banned from harvesting the fruit of his vines.

SB 670 passed under an “ urgency” clause that implemented it immediately. Given the substantial damage SB 670 has already caused, is presently causing, and will continue to cause. Out of fairness, and to minimize those damages, I pray for the courts expediency in a finding that the General Mining laws preempt SB 670 provisions banning suction dredge mining, as well as “takes” private property without paying just compensation to all affected unpatented placer mining claim owners in California.

Share this post


Link to post
Share on other sites

I have a question on this Topic. If I have been reading correctly, some of your posts have stated that due to a loss of livelyhood, you (and others) should be able to sue the state for ta loss. Am I right?

Sooooooo, if that is a feasable conclusion, why are the farmers that have been shutdown due to the diversion of water from the 11 pumps that have been shut down?

Wouldnt you think that they would have the same premise for a lawsuit? Just asking.....thanks

RE: SB 670

DRAFT: Affected party

Affidavit in support of Plaintiffs cause of action:

I, and my extended family own unpatented placer mining claims in California, in which we have a considerable investment. In these dire economic times, several family members rely on suction dredging as their sole means of income. By no means, are we recreational miners. Our mining claims were acquired, based on reasonable investment based expectations, that we will profit from having done so. That profit being derived from the sale of placer gold we were previously able to recover from them, prior to the illegal prohibition of suction dredge mining throughout California by SB 670.

All valid unpatented placer mining claims in existence, are situated on federal lands under jurisdiction of the Department of Agriculture (USFS), or Department of the Interior (BLM). Done by federal invitation, having been lawfully initiated under statutory federal grant to citizens providing for mineral entry in accordance with 30 U.S.C. § 21-54. Otherwise, none would exist, as federal land open to such occupation is the only place on which citizens can initiate, maintain, and own this unique type of mineral estate.

Specific regulations of the USFS (36 CFR 228 ), and BLM (43 CFR 3802 & 43 CFR 3809) stringently control all mining operations on unpatented mining claims, to protect federal lands from significant, or undue degradation. Certainly, the state has a right to regulate that use. However, state regulation cannot be unreasonable, arbitrary, capricious, in direct conflict with, or preempted by federal law.

Placer gold erodes from its originating source rock over millennium, naturally concentrating down slope as gold dust, flakes, and nuggets on, or near bedrock in alluvial gravels of local streams, and rivers. Given that geologic fact, on most placer claims, there is no affordable, practical, or effective way for a person of ordinary means to recover placer gold in profitable amounts, other than by suction dredging.

A compilation of the numerous credible suction dredge studies (See addendum 1) performed over decades by authoritative federal, state agencies, and universities clearly show modern suction dredging, for the most part has only a fleeting negligible, or De minimis effect on salmon habitat ecosystems.

The reality here is, a man made “tragedy of the commons“, caused by massive headwater diversions of water to irrigate California’s agricultural crops, associated pollutant runoff of agro-fertilizer-pesticides, hydroelectric dams, myriad industrial pollutants, logging, commercial fishing, and numerous other human caused degradation of California waterways have all directly caused a massive decline in both habitat, and salmon population..

Man made effects combined with natural forces, I.E., extended draught, El Niño ocean conditions, and predation are plainly the primary cause of the decline of California salmon populations. In comparison, suction dredge mining effects are so minimal they equate to no more than one single grain of sand, in relation to sand dunes, hundreds of feet high, and wide, extending for miles. So small, it is of no practical, or arguable consequence.

Previously, DF&G was court ordered, to complete an EIR of the Klamath basin waterways. Which never was done. DF&G relies on various sham excuses why not. Which justifiably adds great credibility that the SB 670 mandated statewide EIR will never be completed either. Thus, for all practical purposes, the SB 670 ban on suction dredging is indefinite.

Explicitly, all a mining claim proprietor owns, is the vested right to mine the valuable mineral within his estate. Plainly, suction dredge mining is the highest, and best use on the majority of placer claims. To ban suction dredge mining for an indefinite period of time, eviscerates the fundamental purpose of all federal Mining Laws, by rendering it, as a practical matter, impossible to profitably exploit those valuable mineral deposits all placer mining claimants in California own. Exactly as it would be, if a vineyard owner was banned from harvesting the fruit of his vines.

SB 670 passed under an “ urgency” clause that implemented it immediately. Given the substantial damage SB 670 has already caused, is presently causing, and will continue to cause. Out of fairness, and to minimize those damages, I pray for the courts expediency in a finding that the General Mining laws preempt SB 670 provisions banning suction dredge mining, as well as “takes” private property without paying just compensation to all affected unpatented placer mining claim owners in California.

Share this post


Link to post
Share on other sites

About the 7th post in this thread explains that.

It impart reads as follows:

At the heart of this case (Tulare Lake Basin Water Storage District v. United States) is the federal government’s Central Valley Water Project and California’s State Water Project — the natural and man-made systems of dams, reservoirs, pumping stations, and aqueducts that transport water from Northern California through the Central Valley to Southern California. For nearly 50 years, the federal and state water projects have contracted with locally-created water districts in the agriculture-based Central Valley to distribute the water to hundreds of farmers to irrigate their crops. Under these contracts, the water districts collect the farmers’ payments for the water they use and forward the payments on to the federal and state governments.

During drought conditions in 1992, the National Marine Fisheries Service determined that continued distribution of water from the federal and state water projects to water districts and Central Valley farmers for irrigation was threatening the survival of the winter-run Chinook salmon and the delta smelt. Based on that determination and the established presumption that ESA was to be enforced “whatever the cost,” the federal and state water projects, for the next three years, halved the annual water allocation to the districts and farmers, and doubled the annual charge the districts and farmers paid for the water.

The water users filed suit against the federal government alleging that the reduction of water was a “taking” of private property under the Fifth Amendment that entitled them to compensation for their losses caused when the water was not delivered. The court ruling that the federal government had taken the water districts’ and farmers’ property stated:

The Fifth Amendment to the United States Constitution concludes with the phrase: “nor shall private property be taken for public use, without just compensation.” The purpose of that clause is [quoting a U.S. Supreme Court decision] “to bar Government from forcing some people alone to bear public burdens which, in all fairness and justice, should be borne by the public as a whole.” ... The federal government is certainly free to preserve the fish; it must simply pay for the water it takes to do so.

The government agreed to pay $16.7 million & did

EDIT TO ADD:

Not all water users have, or own the same rights.

Water rights are dependent on provisions of the Acts, by which water users acquired them.

Some have the right to sue for damages, others do not.

Share this post


Link to post
Share on other sites

Ok I got it, so in 92 they paid 16.7 mil. But now 90% of the water is cut off to the Central valley farmers, I havent seen anyting about the Farmers being compensated, unless you have? But I am looking.

I guess getting back to what Eldorado is claiming and I personally agree with, that this is all very political and my experience with California personally, they will attempt to circumvent the Law, based on more law. I also wonder about imminent domain and how that could apply to water? Water is property is it not?

Sorry I am not trying to be difficult, just trying to look at all sides and I am nowhere near as educated on this issue as you and El and others are. I am though very experienced in how California works. It can be another plane of existence.

Share this post


Link to post
Share on other sites

For instance, miners on unpatented placer mining claims on federal lands have water rights granted by 16 U.S.C. § 481.…..and 43 CFR § 3809.3 provides: All state laws, or regulation in conflict with this right, are void and of no effect.

Meaning, if they take a miners water to the point, he cannot mine profitably, for lack of water.

That effects a "taking" of private property rights, for which just compensation must be paid

Share this post


Link to post
Share on other sites

Well this would answer my own question also.

The power to take private property for public use by a state, municipality, or private person or corporation authorized to exercise functions of public character, following the payment of just compensation to the owner of that property.

Federal, state, and local governments may take private property through their power of eminent domain or may regulate it by exercising their Police Power. The Fifth Amendment to the U.S. Constitution requires the government to provide just compensation to the owner of the private property to be taken. A variety of property rights are subject to eminent domain, such as air, water, and land rights. The government takes private property through condemnation proceedings. Throughout these proceedings, the property owner has the right of due process.

Eminent domain is a challenging area for the courts, which have struggled with the question of whether the regulation of property, rather than its acquisition, is a taking requiring just compensation. In addition, private property owners have begun to initiate actions against the government in a kind of proceeding called inverse condemnation

So it looks like water is included and therefore anyone using that water, would have rights to compensation.

Share this post


Link to post
Share on other sites
So it looks like water is included and therefore anyone using that water, would have rights to compensation.

Not always. You have to have a legal right to use the water.

It would depend on the law that provides the right & use.

Sometime you have a right to use, but it fails, if you never have "used" it prior & someone else used it all up, before you attempt to use it.

Often, a use right has to be consumated by actual "use", before it vests.

Water rights can be VERY complex.

Once, years I bought a patented placer claim in Idaho.

With title was X foot acres of water rights (I don't recall the exact number, but it was big).

After we mined the property out, we reclaimed it (backfill/ back-blade/graded/replanted seedling tree's & hydro-seeded the meadow with wild grass/flowers.

We subdivided it & sold the land as recreational 2.5 acre each building lots, each with access & individual water rights.

Turns out, I owned more water rights than I had first realized

Once all the lot owners were deeded their small amount, we sold the remainder to a local water utiliyy company.

Turned out the water rights were worth as much as the land itself. That made my day.

Share this post


Link to post
Share on other sites

Since I made this post, DF&G has removed the first links content. The link is still live, but the content is now GONE

I think we are getting to them, since they are removing/deleting the public record of their own words & actions.

I'm glad I have printed copies.

DF&G REMOVES/DESTROYS EVIDENCE

That says much about how the operate,....... :laught16:

~~~~~~~~~~~~~~~~~~~~~

http://www.dfg.ca.gov/fish/documents/SAL_S...4/TitlePage.pdf

3.6.6 SUCTION DREDGING

Suction-dredge placer miners extract gold from the river gravels by sucking the gold- bearing gravels through a nozzle (typically 6 to 8 inches in diameter) into floating dredges, pumping the gravel and water mixture across a settling table where the gold concentrates by gravity, and then discharging the gravel and water back into the river. Both the pump and the sluice box are usually mounted on a floating platform, often positioned over the work area by ropes or cables secured to trees or rocks. The portion of stream bottom dredged ranges from a few small excavations to the entire wetted area in a section of the stream. Larger suction dredges have the capacity to process as much as several cubic yards of gravel from the river bottom at one time.

An annual permit from the Department (Title 14 California Code of Regulations [CCR], §228) and, in some circumstances, a Lake and Streambed Alteration Agreement (FGC §1600) is required to engage in this activity. Dredging activities in freshwater environments can have a variety of direct impacts on the environment, including impacts on aquatic and riparian organisms (Griffith and Andrews 1981;Thomas 1985; Harvey 1986) and channel stability. Impacts can also result from the potential release of hazardous materials such as mercury into aquatic and terrestrial environments. However, there are no studies that document such dredging-related impacts on coho salmon or their habitat within the range of coho salmon. The restrictions currently imposed by regulations on this activity are designed to eliminate the potential for impacts to coho salmon by restricting suction dredging actions to locations and times when such activities should not impact the species.

DF&G 2004 report above is WRONG, in that 6 to 8 inch suction dredges are NOT typical.

Typical for placer gold mining is 3, 4 or 5 inch suction dredges.

It is also WRONG, in that there are numerous studies available.

For instance:

http://www.nwfsc.noaa.gov/publications/tec...s/tm24/tm24.htm

Take note: Existing studies show suction dredging has a negligible impact, so small there is no mention of suction dredging in the study above.

Now, it gets comical, CA DF&G states: :rofl2:

“The restrictions currently imposed by regulations on this activity are designed to eliminate the potential for impacts to coho salmon by restricting suction dredging actions to locations and times when such activities should not impact the species.”

If the potential impact is already eliminated, why would a EIS need to be performed? :hmmmmmm:

Share this post


Link to post
Share on other sites

Just a quick heads up for anyone thinking about suing CA [or any of its departments such a F&G] for money damages in a California state court: You first are required to follow the Tort Claims Act by filing a claim. There is a time limit on this. For proper venue you will have to file your lawsuit in one of the counties in which the State Attorney General maintains an office [essentially this means SF, Alameda, Sacto, LA or San Diego]. If you file your lawsuit in federal court, you do not need to file a prior claim with the state and you are not restricted to filing only in counties where the AG maintains an office.

Share this post


Link to post
Share on other sites
Just a quick heads up for anyone thinking about suing CA [or any of its departments such a F&G] for money damages in a California state court: You first are required to follow the Tort Claims Act by filing a claim. There is a time limit on this. For proper venue you will have to file your lawsuit in one of the counties in which the State Attorney General maintains an office [essentially this means SF, Alameda, Sacto, LA or San Diego]. If you file your lawsuit in federal court, you do not need to file a prior claim with the state and you are not restricted to filing only in counties where the AG maintains an office.

First, "the government entity charged with implementing the regulations [must have] reached a final decision regarding the application of the regulations to the property at issue." 473 U.S. at 186.

Second, plaintiffs must have sought "compensation through the procedures provided by the State for obtaining such compensation." 473 U.S. at 195.

Both the final decision and compensation elements must be ripe before the claim is judiciable.

1st, you must have “standing”. Which all CA placer mining claim owners, all cancelled permit holders & anyone who applies for a permit, which is denied, would have standing.

Here, possibly, 25,000 plaintiffs could be involved, as having legitimate standing.

With that many plaintiffs seeking damages, this would certainly qualify as a class action.

A cause of action must be “ripe“, before plaintiffs can pursue it .

Here, the regulation is in effect & enforced (ripe).

The suction dredge ban has not yet been ruled impermissible by a federal court.

(not ripe - yet)

Once the dredging ban is overthrown, as impermissible (ripe)

Then, a smart lawyer will gather those with standing into a class action group who must first exhaust administrative remedies (bill the state for damages).

Once done & ignored, or they refuse to pay, the action is RIPE for a federal court action.

So, this is a long row to hoe, but it’s on it’s way.

Share this post


Link to post
Share on other sites

A very good article that talks about the issue of water in California. While it does not address the issue of the Karuks and dredging, it may in the end have some impact on the thinking in California.

Emptying Reservoirs in the Middle of a Drought

By Max Schulz from the September 2009 issue

http://spectator.org/archives/2009/09/11/e...irs-in-the-mid/

I have included a small part of the article below.

Missing in this sad affair has been any element of common sense. But that may be changing. In response this summer to an appeal of the last year's Fish and Wildlife Service ruling, Judge Wanger signaled a change of course. He hinted that the USFWS's decision supporting the shutting off of pumps to Central Valley farmers (not to mention his initial order to do so) may have erred by not taking into account the impact on the human populations. As the issue winds its way through the courts, it remains to be seen whether Judge Wanger's newfound logic holds up. If so, there may be protection for the endangered farmer after all.

Share this post


Link to post
Share on other sites

That article hits the nail, square on its head.

Being a retired mining engineer, I know a little about mining & what it means to modern civilization.

When confronted with anti-mining enviro loonies.

I often ask, you use all the benefits of mining of that produce or make everything our whole infrastructure is made from & dependent on. You use every modern convenience, appliance, transport, electricity & every other thing, that would not exist without mining.

Then have the “gall” to bad mouth mining.

Reality is, revert to a hunter gatherer society, that uses nothing mining makes possible.

Meaning modern society & civilization would have to disappear first.

Then you have the right to bitch about mining effects on the enviroment.

But, so long as you use & consume all the benefits mining produces.

You are a hypocrite talking out your anal orifice, when you bad mouth the very source of what you so gleefully use/consume every single day of your life, without giving a single thought what makes modern civilization possible, or where it comes from.

Take note, if just one simple thing derived from mining, such as cement/concrete were to disappear in an instant.

Every modern house, building, city, bridge, roadway, railway, hydroelectric dam, , ad infinitum would collapse into a worthless rubble pile.

Ponder, all metal comes from mining. Try doing without metal for a day & see what that would be like. :Huh_anim]:

Share this post


Link to post
Share on other sites

A GOOD READ ON THE EFFECTS OF SUCTION DREDGING

~~~~~~~~~~~~~~~~~

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

June 6, 2007

Subject: SUCTION DREDGE MINING

Dear Board Members,

Thank you for allowing me this opportunity to comment on the water quality aspects of small-scale suction dredge mining.

As I have searched the scientific literature for studies on the effects of small-scale suction dredge mining on the environment I have learned that the preponderance of the published research studies have been directed towards assessment of its effect on the biology of the streams and rivers. In nearly every instance the results have concluded that the effects were less than significant.

In water quality terms some studies have discussed turbidity, water temperature, and suspension of heavy metals into the overlying water. I will focus my water quality comments on these three areas. But first I would like to put this issue in to perspective.

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 settleable 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 AND SUSPENDED

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).

Side 1 Dredge 1 Side 2 Side 1 Dredge 2 Side 2

1A 1B 1C 2A 2B 2C

pH 7.7 7.6 7.8 7.0 7.5 7.5

Arsenic 0.3 0.3 0.3 0.3 0.3 0.3

Iron 110. 110. 110. 100 97 100

Chromium 2 2 3 3 3 3

Cadmium all less than 0.02 micrograms per liter

Cobalt 0.07 0.07 0.06 0.06 0.05 0.05

Zinc 0.8 0.6 0.8 1.0 1.0 1.0

Lead all less than 0.05 micrograms per liter

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.

Respectfully Yours,

Joseph C. Greene

Research Biologist, U.S. EPA Retired

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.

Share this post


Link to post
Share on other sites

:whoopie: :bowdown: :whoopie: :bowdown: :whoopie: :bowdown: :whoopie: :bowdown:

UNITED STATES DISTRICT COURT

FOR THE EASTERN DISTRICT OF CALIFORNIA

PUBLIC LANDS FOR THE PEOPLE, INC., a California 501 C-3, non-profit corporation; Gerald E. Hobbs; Patrick Keene; Keene Engineering Co., Inc., a California corporation; Robert Haiduck; Terry Stapp; Dee Stapp; David DeCosta; James Gregory Lee; Mike Holt; Todd Bracken; Shannon Poe; and David Richard,

Plaintiffs,

v.

State of California; Arnold Schwarzenegger, in his official capacity as Governor of the State of California; California Department of Fish & Game; and Donald Koch, in his official capacity as Director, California Department of Fish & Game; and Does 1-20,

Defendants.

CIVIL ACTION NO.

COMPLAINT FOR:

Adjudication of Federal Preemption and Supremacy Relating to the Mining Laws of the United States;

Deprivation of Property Rights and Due Process of Law; Denial of Equal Protection of the Laws; Taking of Property Without Compensation; Violation of Civil Rights; Violation of the Mining and Minerals Policy Act of 1970, 30 U.S.C. § 21a; Violation of 30 U.S.C. §§ 21-54 (Mining Act); Violation of Plaintiffs’ Implied Rights to Use Public Lands (Quiet Title); Unlawful Interference With Commerce; Injunctive Relief; and Damages.

DEMAND FOR JURY TRIAL

/ / /

/ / /

/ / /

JURISDICTION AND VENUE

1. Jurisdiction is proper in this Court under 28 U.S.C. § 1331 because this action arises under the laws of the United States. The conduct complained of creates an actual, justiciable controversy. The California legislature has passed an act, SB 670, and the Governor of California, the Honorable Arnold Schwarzenegger has signed into law SB 670, prohibiting all motorized mining, including vacuum and suction dredge mining, in the rivers, streams, and waterways of California, in derogation of Federal law authorizing, protecting, and permitting such mining.

2. This Court has jurisdiction, among other matters, pursuant to 28 U.S.C. § 1331 (federal question), §§ 2201, 2202 (declaratory relief), § 2202 (injunctive relief), and § 2409(a) (quiet title).

3. This action arises under the various acts, regulations, laws, and constitutions, as set forth in paragraph 8.

4. This Court has the power to grant declaratory and injunctive relief pursuant to 28 U.S.C. §§ 2201 and 2202.

5. This lawsuit requests judicial review of final actions taken by the Defendants (or their predecessors-in-interest). Defendants’ actions unlawfully abrogate, prescribe, and/or prohibit Federal statutorily prescribed rights of unpatented mining claim owners, miners and prospectors as well as violating Federal statutorily prescribed methods relating to mining and prospecting on Federal lands in the State of California.

6. Defendants are attempting to unlawfully alter the entire Federal regulatory framework for citizens, miners and prospectors in the State of California by adopting a rigid, narrow, and single-focus policy regarding closure of all rivers, streams, and waterways to motorized mining methods, including without limitation, vacuum and suction dredge mining. Defendants failed to consider any meaningful alternatives which could be applied specifically to miners, prospectors, and other citizens who are potential miners and prospectors.

7. This is an action for declaratory judgment, injunctive relief (Rule 65, Federal Rules of Civil Procedure), as well as for damages incurred by Plaintiffs. The Plaintiffs request the Court to declare unlawful, enjoin implementation of, and set aside the promulgation and adoption by the legislature and the Governor of California of the prohibition of all motorized means of mining in the rivers, streams, and waterways of California, including without limitation, vacuum and suction dredge mining, not only as it applies to miners and prospectors, but also all other members of the public who are potential mining claimants, miners and prospectors.

8. The Plaintiffs seek an Order from this Court declaring that Defendants’ actions in adopting and implementing a prohibition of all motorized methods of mining, including without limitation, vacuum and suction dredge mining in the rivers, streams, and waterways of California as applied to miners and prospectors, and those who intend to become miners and prospectors, violated the following:

A. National Environmental Policy Act (“NEPA”), 42 U.S.C. § 4321 et seq. (1969); and Executive Orders: EO 12291 and EO 12866;

B. Multiple Use Sustained Yield Act (“MUSYA”), 16 U.S.C. § 528 et seq. (1960);

C. Numerous sections of the Code of Federal Regulations (“CFR”), as set forth in 36 CFR 228 et seq.; 36 CFR 261 et seq.; 43 CFR 3800; 43 CFR 3809.1 et seq., including without limitation 43 CFR 3809.3; and also including without limitation, numerous other sections of the CFRs regulating mining, prospecting, and associated activities on Federal lands.

D. The Federal Lands Policy and Management Act (“FLPMA”) 43 U.S.C. § 1701 et seq., including without limitation §§ 1732(b), 1761 and 1769;

E. PL No. 104-208, 110 Stat.3009 § 108 (Omnibus Consolidated Appropriations Act of 1997);

F. 30 U.S.C. §§ 21-54 (Mining Act), including without limitation the Mining and Minerals Policy Act of 1970, 30 U.S.C. § 21(a);

G. 16 U.S.C. § 481 (Use of Waters);

H. 30 U.S.C. § 612, 613, 615 (Multiple Surface Use Act);

I. 5 U.S.C. §§ 601, 602, 603(b) and © (Regulatory Flexibility Act As Amended By The Small Business Regulatory Enforcement Fairness Act of 1996 (5 U.S.C. §§ 801-808) [sBREFA]);

J. The Endangered Species Act 16 U.S.C. § 1531;

K. California Civil Code § 3479 et seq.;

L. California Code of Civil Procedure § 731;

M. The 5th and 14th Amendments to the Constitution of the United States;

N. Article I § 8 (Commerce Clause) of the Constitution of the United States;

O. Article I § 7(a) of the Constitution of California; and

P. Article I § 19 of the Constitution of California.

9. Venue is proper in this Court pursuant to 28 U.S.C. §§ 1331, 1391(b) and (e), and

because the events and omissions giving rise to Plaintiffs’ claims occurred within this judicial district.

INTRODUCTION

10. This case presents a classic conflict between prospectors, miners who hold unpatented or patented mining claims on Federal lands pursuant to the mining laws of the United States, and the State of California, Department of Fish and Game (“DF&G”). Until recently, DF&G issued permits for vacuum and suction dredge prospecting and mining on such claims for rivers, streams, and waterways in the State of California running through such Federal mining claims and estates, and unclaimed Federal lands open to prospecting and mining.

11. Beginning on August 6, 2009, DF&G would no longer issue permits for vacuum and suction dredge mining on Federal mining claims, and cancelled all such permits previously issued. This had the effect of prohibiting vacuum and suction dredge mining and prospecting in the State of California on all Federal mining claims and lands, and unclaimed lands open to location and entry under the United States mining laws, and unlawfully prohibited the location, utilization and development of mining claims and mineral estates in California. This unlawfully affected and unconstitutionally burdened interstate and foreign commerce, since many of the prospectors, and mining claim and mineral estate owners, are non-residents of California who prospect or work their claims and mineral estates in California with vacuum and suction dredges. This affected not only California residents who are mining claim owners, prospectors and miners, but also non-resident mining claim owners, prospectors and miners who purchased non-resident permits from DF&G in order to engage in vacuum and suction dredge mining in the State of California. This also had the effect of stopping the sale of equipment and accessories for vacuum and suction dredge mining both within and without the State of California. This placed an unlawful, unconstitutional, and undue burden and restriction on interstate and foreign commerce in the sale of the aforesaid mining equipment and accessories.

12. The California DF&G claims authorization to issue permits for vacuum and suction dredge mining in the State of California, even when such mining occurs on Federal lands and is pursuant to the mining laws of the United States. California Fish and Game Code § 5653 et seq.; California Code of Regulations 14 CCR § 228. Waters within the boundaries of Federal lands, including National Forests, National Parks, and lands within the jurisdiction of the Bureau of Land Management (BLM) may be used for mining. 16 U.S.C. § 481. The attempt to stop suction dredge mining in California has a long and tangled history.

13. In 2004, the Karuk Tribe filed suit in the United States District Court in Oakland, California for declaratory and injunctive relief alleging improper management of suction dredge and other mining operations in waterways and riparian areas within the Klamath National Forest. The Karuk Tribe claimed violation of the National Forest Management Act, National Environmental Policy Act, and the Endangered Species Act. Judgment was rendered against the Karuk Tribe and for the defendants. Karuk Tribe of California vs. United States Forest Service, et al., 379 F.Supp.2d 1071 (2005). Anticipating a loss in Federal Court, the Karuk Tribe decided to try their legal luck in State Court. On May 6, 2005, the Karuk Tribe of California filed suit against the California Department of Fish and Game in the Superior Court of Alameda County. Karuk Tribe of California; and Leaf Hillman, Plaintiffs, v. California Department of Fish and Game; and Ryan Broddrick, Director, California Department of Fish and Game, Defendants, Case No. RG 05211597. The case was heard by Judge Bonnie Sabraw. Judge Sabraw is now retired, and the case was transferred to the Honorable Frank Roesch, Judge of the Superior Court, Alameda County. The object of this lawsuit was to stop all suction dredge mining in the Klamath, Scott, and Salmon Rivers, and specified tributaries, supposedly in order to protect Coho salmon. No notice was initially given to any miners that this litigation had been filed. The Karuk Tribe is headquartered on the Klamath River in Happy Camp, California.

14. The California Department of Fish and Game (“DF&G”) at first opposed the allegations of the Karuk Tribe as set forth in its Complaint. Soon however, DF&G decided to capitulate to the Karuk Tribe. DF&G, effective November 30, 2005, issued regulations severely restricting suction dredge mining in the Klamath, Scott, and Salmon Rivers and their tributaries. These regulations specifically referenced the litigation brought by the Karuk Tribe in Alameda County. In addition, the Karuk Tribe and DF&G presented to Judge Sabraw a “Proposed Stipulated Judgment,” and later a modified “Proposed Stipulated Judgment,” which would have enjoined and restrained DF&G from issuing permits for suction dredge mining “for the Klamath, Salmon, and Scott Rivers, their tributaries and thermal refugia.”

15. The first that the miners heard of the State Court litigation filed by the Karuk Tribe in Alameda County was approximately December 7, 2005, when they were refused suction dredge mining permits by DF&G affecting the whole State of California, because of the Karuk Tribe litigation. At this stage, Judge Sabraw had issued no order authorizing such prohibition. DF&G did this without any rule making authority or process whatsoever, or in compliance with any court order.

16. The mining claim owners and miners who were denied permits by DF&G contacted Mr. Hobbs, as President of PLP, and informed him of their situation. Mr. Hobbs informed other mining groups of the Karuk Tribe litigation, and the unilateral and unauthorized prohibitions placed on suction dredge mining in California by DF&G. Mr. Hobbs requested the Court not to sign the Proposed Stipulated Judgment (“PSJ”). In 2006, Mr. Hobbs, and another mining organization, were allowed by Judge Sabraw to intervene in the Karuk Tribe litigation. Mr. Hobbs immediately set about opposing the PSJ which the Karuk Tribe and DF&G had presented to Judge Sabraw.

17. After extensive briefings and hearings by all parties, on June 16, 2006, Judge Sabraw issued the Court’s “Order Denying Motion to Enter Judgment.” Judge Sabraw specifically found that the PSJ which would have prohibited suction dredge mining in the Klamath, Scott, and Salmon Rivers, and their tributaries, “was contrary to law and public policy.”

18. DF&G initially opposed the Karuk Tribe in the litigation before Judge Sabraw. However, DF&G has openly admitted that it does not want to be the agency administering suction dredge mining in California. Seeing an opportunity to rid itself of issuing permits for suction dredge mining, DF&G decided to switch horses in mid-stream.

19. Thereafter, DF&G changed its position and filed two affidavits from its officials and employees asserting that suction dredge mining could have an adverse effect on Coho Salmon in the litigation relating to the Klamath, Scott, and Salmon Rivers. The miners strongly disputed any such alleged admissions of DF&G.

20. No miner in California would ever rely on DF&G to protect his or her interest. The mining community in California has no confidence in DF&G to protect their interest in anything relating to mining.

21. Judge Sabraw encouraged all parties to enter into settlement negotiations. After two meetings in Sacramento, and much blood, sweat, and tears, all parties were finally able to reach settlement of the Karuk Tribe litigation. On December 20, 2006, Judge Sabraw entered the Court’s Order and Consent Judgment. The heart of the Court’s December 20, 2006, Order and Consent Judgment was that DF&G will conduct a review relating to the Klamath, Scott, and Salmon Rivers, pursuant to the California Environmental Quality Act (“CEQA”), Public Resources Code § 21000 et seq., which was to be completed within 18 months. During this period, suction dredge mining was to be permitted in the Klamath, Scott, and Salmon Rivers, and their tributaries. All requests for injunctive relief against DF&G barring suction dredge mining were withdrawn pending such environmental review. Thus, suction dredge mining continued pending an environmental determination as to whether any prohibition whatsoever would be justified.

22. The heart of Judge Sabraw’s Order and Consent Judgment reads as follows:

“THEREFORE, the Department is hereby ORDERED to conduct a further environmental review pursuant to CEQA of its suction dredge mining regulations and to implement, if necessary, via rulemaking, mitigation measures to protect the Coho salmon and/or other special status fish species in the watershed of the Klamath, Scott, and Salmon Rivers, listed as threatened or endangered after the 1994 EIR.”

23. The aforesaid review was to be completed within eighteen months, and the Court retained jurisdiction of the matter. DF&G was not able to complete the review in the time frame set by Judge Sabraw, claiming (a) that they could not do an EIR limited to only the Klamath, Scott and Salmon Rivers, but had to do an all inclusive statewide EIR; and (b) further claiming that the California financial crisis prevented it from being funded by the legislature to complete the DF&G unilaterally expanded statewide review. There is now pending a hearing before Judge Roesch to hold DF&G and its Director, Donald Koch, in contempt for failing to timely complete the DF&G inspired statewide review.

24. The two suspect affidavits filed by DF&G turned out to cost the State $230,000.00. The Karuk Tribe later filed a motion for attorneys fees against DF&G, who, after negotiations, agreed to and did pay the Karuk Tribe $230,000.00. The Karuk Tribe agreed to seek no further attorneys fees in the litigation before Judge Sabraw.

25. Although the Karuk Tribe consented to the judgment entered by Judge Sabraw on December 20, 2006, the Karuk Tribe then became an initiator and supporter of new legislation, AB 1032, which supposedly was meant to protect trout by prohibiting suction dredge gold mining in approximately sixty-eight rivers throughout California, including the Klamath, Scott, and Salmon Rivers. AB 1032 was unusual in referring numerous times to the Karuk Tribe litigation in Alameda County, still then pending before Judge Sabraw. AB 1032 by its terms was to remain in effect until January 1, 2011, unless DF&G has completed the CEQA environmental review prior to that date which has been mandated by Judge Sabraw in the Karuk Tribe litigation in Alameda County. Thus, the heart of AB 1032 was to prohibit suction dredge gold mining in sixty-eight rivers throughout California, including the Klamath, Scott, and Salmon Rivers, and their tributaries, until the CEQA environmental review is completed. This stood Judge Sabraw’s December 20, 2006, Order and Consent Judgment on its head.

26. Judge Sabraw refused to prohibit any such suction dredge mining, including gold mining, until the environmental review was completed. The environmental review had to be completed first in order to see whether or not any such prohibition would be justified. Even in the unlikely event an environmental review would justify suction dredge mining prohibitions in the Klamath, Scott, and Salmon Rivers; any such prohibition set forth in AB 1032 would be immediately repealed upon the completion of the environmental review ordered by Judge Sabraw. AB 1032 was inherently illogical, since it applied only to suction dredge gold mining, and allowed all other types of suction dredge mining, including mining for silver, copper, lead,

mercury, and other heavy metals and precious and semi-precious gems. However, AB 1032’s inherently illogical provisions were not its chief fault and defect.

27. AB 1032 was meant to subvert Judge Sabraw’s court order permitting suction dredge mining, including gold mining, in the Klamath, Scott, and Salmon Rivers pending an environmental review. AB 1032 was special, private, legislation that enhanced the Karuk Tribe’s economic and political position in a way that Judge Sabraw, after hearings and consideration, refused to sanction.

28. Plaintiff Gerald E. Hobbs testified before the legislature against the passage of AB 1032. However, AB 1032 was eventually passed and went to Governor Schwarzenegger for his signature. What AB 1032 was meant to do is make Governor Schwarzenegger a party to the subversion of a valid court order. AB 1032 struck at the very heart of a court’s authority to uphold the rule of law. Governor Schwarzenegger vetoed AB 1032.

29. In his veto message, Governor Schwarzenegger stated:

“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.”

30. After Governor Schwarzenegger vetoed AB 1032, legislative allies of the Karuk Tribe then attempted to stop suction dredge mining in California by attaching a prohibition of such mining to the California state budget bill. Governor Schwarzenegger line-item vetoed that attempt.

31. After the stealth attack on suction dredge mining via the state budget failed, the Karuk Tribe then petitioned the Department of Fish & Game to have suction dredge mining prohibited throughout California. DF&G rejected the Karuk Tribe’s petition.

32. This did not stop the Karuk Tribe’s longstanding attempt to end suction dredge mining in California. On February 5, 2009, three members and officials of the Karuk Tribe filed a purported taxpayers action in the Alameda County Superior Court seeking to stop suction dredge mining throughout all of California. Hillman et al. v. California Department of Fish and Game. Case No. RG009 434444. That case was eventually assigned to Judge Roesch, in light of his involvement with the prior Karuk Tribe litigation upon the retirement of Judge Sabraw.

33. After pointing out to the Court that the supposed outraged taxpayer Plaintiffs were really stand-ins for the Karuk Tribe, an amended Complaint was filed consisting of the Karuk Tribe, its three initial members, and a bevy of environmental groups and allies of the Karuk Tribe.

34. The same relief the Karuk Tribe sought in the taxpayer suit, Hillman v. DF&G, supra, could have been brought in the initial case heard by Judge Sabraw, Karuk Tribe v. DF&G, supra. That case is still subject to the Superior Court’s jurisdiction. However, since no further attorneys fees could be obtained in Karuk Tribe v. DF&G, a supposed taxpayers’ suit was initiated with the hope of obtaining further attorney’s fees. The State is concerned that in light of the Preliminary Injunction issued by Judge Roesch, they will be subject to further substantial attorney’s fees.

35. The Karuk Tribe then sought a Preliminary Injunction in the taxpayers’ action before Judge Roesch. On July 10, 2009, Judge Roesch issued a Preliminary Injunction, relying on the two suspect affidavits filed by officials and employees of DF&G relating to Coho salmon in the Klamath, Scott, and Salmon Rivers in the litigation initiated before Judge Sabraw.

36. The Preliminary Injunction ordered by Judge Roesch prohibited the California Department of Fish and Game from issuing any permits for suction dredge mining in every river, stream, and waterway throughout California. Judge Roesch’s Preliminary Injunction applied to every river, stream, and waterway in California irrespective of whether or not they had any Coho salmon in them or indeed any fish at all. Only a small percentage of the rivers, streams, and waterways in California have any salmon in them whatsoever, and a substantially smaller percentage contain any Coho salmon. The Preliminary Injunction ordered by Judge Roesch is presently on appeal.

37. On February 27, 2009, another attempt was made by the Karuk Tribe to circumvent Judge Sabraw’s Order. Allies of the Karuk Tribe introduced SB 670 in the State Senate again seeking to prohibit all suction dredge mining in every river, stream, lake, and waterway in California until a CEQA review had been completed and new regulations were operative. The prohibition would take place whether or not there were Coho salmon, trout, minnows, or any fish whatsoever in any of the State’s waters. SB 670 was, in many respects, a replay of AB 1032.

38. SB 670 was aimed at suction dredge mining, and prohibited the issuance by DF&G of any new permits for suction dredge mining in California. In addition, SB 670 invalidated any prior permits issued by DF&G for suction dredge mining. SB 670 prohibited suction dredge mining in every river, stream, lake, and waterway throughout the State of California, not just the three rivers in the initial suit brought before Judge Sabraw--the Klamath, Scott and Salmon Rivers--nor the 68 rivers and streams targeted in AB 1032. This prohibitory progression is regulation run riot.

39. SB 670 passed the legislature and was sent to Governor Schwarzenegger for his signature. Reversing his position where he vetoed AB 1032, and the attempt to prohibit suction dredge mining through a rider to the state budget. Governor Schwarzenegger signed SB 670 into law. This constituted a triumph of money and raw political power over the laws of the United States, including without limitation, those laws relating to mining on Federal lands.

40. For Plaintiff Public Lands for the People, Inc. (“PLP”), and its members as well as all other Plaintiffs, suction dredge prospecting and mining in the rivers, streams, and waterways of California is not recreational. It is an important economic endeavor that has a direct economic impact on family finances, business finances, and in these hard economic times, often is the difference between having to choose whether to put gas in the car, or buy food or medicine for the family. For PLP and its members, and all other Plaintiffs, suction dredge prospecting and mining is not merely a question of having “fun”. Prohibiting suction dredge mining to prospectors and miners, who are Federal mineral estate grantees, forces them to face serious economic hardship. With a perilous economy, being able to sell even an ounce of gold for over $900.00 makes a substantial difference as to the economic choices a family has regarding basic necessities.

41. Prospecting, placer mining, suction dredge mining, and granted rights of way associated with mining and prospecting activities, all of which are mining operations pursuant to the mining laws and the Code of Federal Regulations (“CFR”), and all of which have valid pre-existing rights pursuant to the mining laws and CFRs, are traditionally common in the State of California, and done in accordance with the rules and customs of miners. Suction dredge mining is the only reasonable, economical, and environmentally sound method for extracting precious metals from the rivers, streams, lakes, and waterways in California.

42. Plaintiffs are informed and believe, and thereon allege, that prohibition of vacuum and suction dredge mining has already taken place and is being implemented. DF&G has sent letters to holders of permits validly issued prior to the passage of SB 670 telling them to cease and desist all suction dredge mining in California. DF&G will no longer issue permits for suction dredge mining in California.

43. This has direct and immediate effect upon mining claim owners, prospectors and miners in California, in that they need mechanized methods of mining, including vacuum and suction dredge mining, in the rivers, streams, lakes, and waterways of California in order to economically prospect and mine in those rivers, streams, lakes, and waterways, and to engage in other associated mining activities therein. DF&G asserts that permits are needed in order to engage in vacuum or suction dredge mining anywhere in the State of California, whether such mining occurs on private, State, or Federal lands, or pursuant to mining claims authorized by the State of California or the United States, or authorized in any manner whatsoever.

44. Plaintiffs are informed and believe, and thereon allege, that the prohibition of vacuum and suction dredge mining in the rivers, streams, lakes, and waterways of California will affect over ninety-five percent (95%) of all mineral production from the aforesaid rivers, streams, lakes, and waterways.

45. The legislature did not consider any alternatives to the prohibition of all motorized means of mining, including vacuum and suction dredge mining, in the rivers, streams, lakes, and waterways of California.

SB 670

46. SB 670 adds to the CF&GC a newly enacted Section 5653.1.

47. Present law prohibits the use of any vacuum or suction dredge equipment by any person in any river, stream, or lake in California without a permit issued by DF&G. California Fish and Game Code § 5653 (“CF&GC”). On average, DF&G has issued approximately 3,200 suction dredge mining permits to California residents every year for the last fifteen (15) years. It is estimated that suction dredge miners, resident and non-resident, spend approximately $60,000,000 in the rural counties of California on supplies, fuel, food, camping, equipment, hardware, lodging, goods and services. Any person required to possess a permit pursuant to Section 5653, shall present his or her dredging equipment for inspection upon request of a State or County Fish and Game Warden. CF&GC § 5653.3. For purposes of §§ 5653 and 5653.3, “person” does not include a partnership, corporation, or other type of association. Under existing law, it is unlawful to possess a vacuum or suction dredge in areas, or in or within a hundred yards of waters that are closed to the use of vacuum or suction dredges. A violation of the permit requirement is a misdemeanor punishable by a fine of up to $1,000.00 and six months in jail. CF&GC § 5653 et seq.; 14 CCR § 228 et seq. The Plaintiffs, as well as other miners and prospectors, are concerned that they will be cited for a criminal violation by DF&G should they attempt to engage in vacuum or suction dredge mining, as well as any other motorized mining use.

48. DF&G is authorized to close areas otherwise open for dredging and for which permits have been issued, if there is an unanticipated water level change and the department determines that the closure is necessary to protect wildlife and water resources. 14 CCR § 228. No such determination has been made by DF&G as it relates to SB 670.

49. Existing law requires DF&G to adopt regulations to implement certain of the vacuum and suction dredge equipment requirements, and authorizes the DF&G to issue regulations with respect to other requirements. Existing law requires that the regulations be adopted in accordance with the requirements of CEQA. CF&GC § 5653.9.

50. CEQA requires a lead agency, as defined, to prepare, or cause to be prepared by contract, and certify the completion of, an environmental impact report on a “project”, as defined, that it proposes to carry out or approve that may have a significant effect on the environment, or to adopt a negative declaration if it finds that the project will not have that effect. SB 670 declares that the issuance of permits to operate vacuum or suction dredge equipment is a “project” pursuant to CEQA. CF&GC § 5653.1(a).

51. The act exempts from its provisions, among other things, certain types of ministerial projects proposed to be carried out or approved by public agencies, and emergency repairs to public service facilities necessary to maintain service. CF&GC § 21080(b)(1); 14 CCR § 15060©(1). The issuance of permits for vacuum or suction dredge mining authorized by Federal law is a non-discretionary and ministerial act.

52. After SB 670 designated the issuance of permits to operate vacuum or suction dredge equipment to be a “project” under CEQA, it suspended the issuance of permits, including permits issued prior to the passage of SB 670, and any mining pursuant to such permit, until the DF&G has completed an environmental impact report for the “project” as ordered by the Court in Karuk Tribe et al. v. California Department of Fish and Game, et al., Alameda County Superior Court, Case No. RG 05211597. DF&G has stated that it will not complete the Court ordered environmental review of its permitting program until, at the earliest, in the late summer of 2011.

53. SB 670 prohibits the use of any vacuum or suction dredge equipment in any river, stream, or lake, for in-stream mining purposes, until the director of DF&G certifies to the Secretary of State that: 1) The DF&G has completed the environmental review of its existing vacuum or suction dredging regulations as ordered by the Court; 2) DF&G has transmitted for filing with the Secretary of State, a certified copy of new regulations as necessary; and 3) the new regulations are operative. There is no time frame set for this cascade of contingencies, and there is no realistic expectation that they will ever be completed within the next decade, if then.

54. In trying to explain why the completion of the environmental impact report will take so long, DF&G has stated that:

“Q: When will the EIR be completed? DFG is preparing a Subsequent Environmental Impact Report (EIR) to conduct the court-ordered review. DFG estimates at this point that it will complete and certify the Subsequent EIR (and updates to the existing regulations, if necessary) after a series of public meetings and other opportunities for public comment and review by late summer 2011. The environmental review and regulation processes are governed by the California Environmental Quality Act and the Administrative Procedures Act, respectively. The time line is driven by the requirements of these laws.”

“Q: Why is this process going to take so long? DFG has already begun the environmental review necessary to analyze the current regulations; this was last done in 1994. The review process will be complex and lengthy given the statewide scope of the analysis and the time that has passed since the last review. In addition to the detailed written analysis prepared by DFG in coordination with the State Water Board, the review process will also include several opportunities for public involvement, both via public meetings and through solicitation of written comments and suggestions. Initial public meetings to discuss the scope of the environmental analysis are currently being planned for November 2009 in Fresno, Sacramento and Redding. Additional details, including the time and place of the meetings, will be posted on the DFG Web site, www.dfg.ca.gov, as they become available.”

Although the court-ordered review for the EIR is only for the Klamath, Scott, and Salmon Rivers, DF&G will conduct a statewide review for the EIR. DF&G has stated that:

“Based on the information DFG collected from interested parties, DFG informed the Alameda County Superior Court in early 2008 that DFG could not proceed with the court-ordered environmental review in reliance on an addendum to the 1994 EIR. DFG informed the court at the same time that more than minor additions or changes to the 1994 EIR would be necessary and that statewide issues would need to be addressed in a subsequent environmental document in order to fulfill DFG’s obligations under CEQA. As a result, DFG informed the Alameda County Superior Court that it intended to prepare a subsequent or supplemental environmental impact report that would be statewide in scope to comply with the December 2006 Court Order.”

55. SB 670 is declared to be an “urgency statute,” and without support of any credible evidence whatsoever, and without the completion of any environmental impact report the legislature:

“finds that suction or vacuum dredge mining results in various adverse environmental impacts to protected fish species, the water quality of this state, and the health of the people of this state, and, in order to protect the environment and the people of California pending the completion of a court-ordered environmental review by the Department of Fish and Game and the operation of new regulations, as necessary, it is necessary that this act take effect immediately.”

56. Thus, the legislative finding is dependent upon the completion of an environmental impact review (“EIR”) that is yet to take place, and may never take place. If an EIR ever does take place, it will most likely affirm that not one fish has ever been killed or harmed through present day suction dredge mining; that such mining causes no discernable harm to the natural environment of the water resources of the State of California; and is, in fact, beneficial to the environment and natural resources of the State of California. The purported legislative finding is without basis in fact, and is a political, not a scientific conclusion, and is contrary to the scientific evidence that was available to the legislature.

57. DF&G will not issue refunds for those who have purchased permits prior to the passage of SB 670, since SB 670 does not provide for any such refunds.

58. DF&G has stated that vacuum or suction dredge equipment lawfully placed in the waters of California prior to the passage of SB 670 must be immediately removed pursuant to CF&GC § 5563. No compensation is to be provided by the DF&G or SB 670 to any mining claim owner, miner or prospector for the expense of purchasing such equipment, lawfully placing such equipment in the State’s waters, or having to remove such equipment from the waters.

PARTIES

59. Plaintiff Public Lands for the People, Inc. is a California 501 c-3 non-profit corporation (“PLP”). PLP is a nationwide organization of miners, who are mineral estate grantees, and prospectors. With its constituent members, PLP constitutes approximately 40,000 people. Its founder and President is Gerald E. Hobbs of San Bernardino, California. PLP, has among its membership, miners and prospectors with mining claims and estates in National Forests in California, Federal lands administered by the Bureau of Land Management in California, National Parks in California, and other Federal lands in California, and throughout the United States. Large numbers of the membership of PLP receive yearly permits from DF&G to engage in vacuum or suction dredge mining in California, and do so engage in such mining in California. These PLP members are directly affected in their mining, prospecting and associated operations by passage of SB 670 that prohibits the issuance of permits for vacuum and suction dredge mining by DF&G, and the cancellation by DF&G of permits already issued, for vacuum and suction dredge mining in California. These PLP members are directly and substantially financially harmed by the passage of SB 670.

60. Gerald E. Hobbs is a member of, founder, and President of PLP. Mr. Hobbs has mining claims and mineral estates in three National Forests, all of which are in California. They are Angeles National Forest, Tahoe National Forest, and Six Rivers National Forest. Mr. Hobbs has permits from DF&G to engage in vacuum and suction dredge mining in California. Mr. Hobbs has paid DF&G for these permits. These permits are subject to cancellation, and have been cancelled, by DF&G pursuant to SB 670. Mr. Hobbs has spent substantial sums in order to engage in suction dredge mining. Mr. Hobbs earned income from suction dredge mining in California which was necessary to maintain his economic viability. Mr. Hobbs is directly and substantially financially harmed by the passage of SB 670.

61. Patrick Keene is part of a third generation family-owned business that has been serving the mining community in California, the United States, and throughout the world for the past 60 years. Mr. Keene is Secretary/Treasurer of Keene Engineering Co., Inc. (“Keene Engineering”) of Chatsworth, California. Keene Engineering is the largest supplier of small scale dredging and mining equipment in the world. The Company, as well as many other manufacturers, sells to small businesses and dealers who provide equipment to prospectors and miners throughout California and the United States. Many of the people who operate suction dredges come to visit California to dredge for gold and work their mining claims. While doing so, they support local businesses in the process of filling their other needs. Mr. Keene has been working for Keene Engineering for over 30 years. Mr. Keene is a member of PLP. Mr. Keene and Keene Engineering are directly and substantially financially harmed by the passage of SB 670.

62. The economic impact of the prohibition of suction dredge mining in California is devastating to Keene Engineering. Since the majority of Keene Engineering’s business is in California, it would not allow the Company and the many others small businesses who also sell prospecting and mining equipment or supplies, to survive. Much of Keene Engineering’s business relies on California suction dredge miners. The losses involved with Keene Engineering’s business would be in the many millions of dollars.

63. Since the introduction of SB 670, suction dredge sales by Keene Engineering and its California dealers have stopped. The fear of this activity becoming illegal, and it being a misdemeanor, carrying up to $1,000.00 in fines, and six months in jail, has been devastating to Keene Engineering’s business, as well as its dealers.

64. Forty percent of Keene Engineering’s business is based on equipment sold to small and medium scale suction dredge miners in California, and the people who travel from other states to suction dredge mine in the rivers and streams in California. Thousands of those people also enjoy associated tourism in California and support local seasonal businesses.

65. Most of Keene Engineering’s suppliers, who provided it with components to build suction dredges are profoundly impacted as well. These businesses also have had a substantial drop in their business. The passage of SB 670 has created a ripple effect on many other industries both in and out of the State of California adversely affecting interstate commerce. SB 670’s prohibition on vacuum and suction dredge mining has cost, or will cost, California economic damage in an amount of approximately 60 million dollars a year, and possibly much more.

66. SB 670 will put Keene Engineering out of business. Keene Engineering employs 35 workers. Keene Engineering will lay off approximately 12 employees in an attempt to economically survive. A number of Keene Engineering’s dealers have contacted the Company, and told Keene Engineering that they are closing their doors since they cannot economically survive selling just non-motorized equipment such as sluice boxes and gold pans.

67. The suction dredge community supports many other businesses in gold bearing areas which are in danger of economic failure. Many jobs are being lost due to the loss of tourism that the passage of SB 670 has engendered. Many campgrounds are empty along rivers and mining areas across California. Many businesses are seasonal, including campgrounds, hotels, restaurants, service stations, and grocery stores. Many of these businesses are located in severely economically depressed areas. These business owners rely on small scale suction dredge miners, prospectors, and tourism in order to survive economically. Many of the counties in Northern California, in the gold bearing area, are economically depressed and having very hard economic times. SB 670 is adding to this economic suffering, eliminating jobs, and creating a loss of tax base for these areas and for the State of California.

68. Californians, and people who come from other states to visit California, spend an average of $3,200.00 per month in local economies as of a study made in 1994. In 2009, the amount spent is substantially higher. Californians, and people from other states, purchase special vehicles such as trucks, campers, trailers, quads, and recreational vehicles to prospect and mine for gold in California.

69. Since the passage of SB 670, many mining claim and mineral estates will lose considerable value because their claim owners cannot mine them effectively, and the counties where they are situated will be compelled to reassess the value of their claims. This will create a large loss to County and State tax basis, and will ultimately curtail governmental services.

70. Mr. Keene is also a small scale independent miner who owns mining claims and estates throughout California. Mr. Keene’s mining claims are on Federal land in National Forests in California and on Bureau of Land Management land in California. Mr. Keene engages in vacuum and suction dredge mining in California, and has permits from DF&G allowing him to engage in such mining. Mr. Keene has paid DF&G for these permits. Mr. Keene has spent substantial sums in order to engage in suction dredge mining. Mr. Keene supplements his and his family’s income from being able to engage in suction dredge mining. By not being able to engage in suction dredge mining on Federal land in California, Mr. Keene, in his individual capacity, is directly and substantially financially harmed by the passage of SB 670.

71. Robert Haiduck is a prospector and miner with mining claims and mineral estates in the Sequoia National Forest, Trinity National Forest, Cleveland National Forest, and other National Forests in California. Mr. Haiduck also has mining claims on federal lands administered by the Bureau of Land Management (“BLM”). Mr. Haiduck is a member of PLP. Mr. Haiduck engages in suction dredge mining on his mining claims in the National Forests in California, as well as, his mining claims on lands administered by BLM. No waters where Mr. Haiduck has mining claims contain any salmon of any species whatsoever. Pursuant to BLM regulations, every ten (10) acres of his unpatented mining claims on BLM land must be sampled for mineral values. Since these claims are on the water, they have to be suction dredged to be correctly and legally sampled. Mr. Haiduck has permits from DF&G to engage in suction dredge mining in California. Mr. Haiduck has paid DF&G for these permits. Mr. Haiduck has spent substantial sums in order to engage in suction dredge mining in California. Mr. Haiduck is severely ill. He is financially dependent for the support of himself and his family, which includes three (3) small children, on suction dredge mining on his mining claims in the National Forests and on BLM land in California. Mr. Haiduck and his family have substantial amounts of personal money invested in mining claims that can only be worked feasibly, economically, and in an environmentally friendly manner by suction dredge mining. Without the ability to suction dredge mine Mr. Haiduck and his family stand to lose almost all of their money, and be completely wiped out economically. Being unable to engage in suction dredge mining on his mining claims in the National Forests of California, and BLM land in California, causes immediate and substantial financial harm to Mr. Haiduck and his family. Mr. Haiduck is directly, severely and substantially financially harmed by the passage of SB 670.

72. Terry Stapp is a 60% disabled Vietnam veteran who retired in 1991 after 25 years in the United States Air Force. Mr. Stapp is a suction dredge miner and has so mined on Federal land in the Downieville area in Sierra County, California for over 30 years. His mining claims and estates in Sierra County are worthless without the ability to engage in suction dredge mining. The economic loss to Mr. Stapp and his wife, Dee, is devastating. Mr. Stapp supplemented his income by suction dredge mining while he was on active duty in the United States Air Force. Since Mr. Stapp retired from the Air Force, suction dredge mining in California is his sole source of income, other than his military retirement pension. Mr. Stapp is directly and substantially financially harmed by the passage of SB 670.

73. Dee Stapp is the wife of Terry Stapp. Mrs. Stapp is a member of PLP. Mrs. Stapp has mining claims and estates on Federal land in California. Mrs. Stapp engages in suction dredge mining on her claims in California, and has permits from DF&G to engage in such mining. Mrs. Stapp has paid DF&G for these permits. Mrs. Stapp has spent substantial sums in order to engage in suction dredge mining. Mrs. Stapp supplements her and her husband’s income through suction dredge mining in California. Mrs. Stapp is directly and substantially financially harmed by the passage of SB 670.

74. Mrs. Stapp started a gold prospecting store in San Bernardino, California and has run it since August 1, 1978. Mrs. Stapp sells suction dredges and dredge accessories to miners which represent about 60% of the store’s income. The passage of SB 670 is a devastating economic blow to Mrs. Stapp’s business income. SB 670 has placed in question the economic

viability of Mrs. Stapp’s business, and the ability of her store to remain open.

75. Mrs. Stapp sells the gold she and her husband obtain from suction dredge mining through the Internet throughout the United States and in foreign commerce. The inability to suction dredge mine will substantially impact the Stapps’ financial and economic well-being, since the Internet sales of suction dredge mined gold amounts to many thousands of dollars per year, and is a necessity for the Stapps to financially survive.

76. David DeCosta has been a suction dredge miner in California for over 20 years. Mr. DeCosta is a member of PLP. Mr. DeCosta has mining claims and estates on Federal land in California. Mr. DeCosta has permits from DF&G to engage in suction dredge mining in California. Mr. DeCosta has paid DF&G for these permits. Mr. DeCosta has spent substantial sums in order to engage in suction dredge mining. Suction dredge mining has provided additional income for Mr. DeCosta and his family. Mr. DeCosta and his family are directly and substantially financially harmed by the passage of SB 670.

77. James Gregory Lee has been a suction dredge miner in California for over 40 years. Mr. Lee is partially disabled. Mr. Lee is a member of PLP. Mr. Lee has mining claims and estates on Federal land in California. Mr. Lee has permits from DF&G, including an assistant suction dredge permit for an aide to help him operate his suction dredge, due to his disability, in order to engage in suction dredge mining in California. Mr. Lee has paid DF&G for these permits. Mr. Lee has spent substantial sums in order to engage in suction dredge mining. Suction dredge mining has provided additional income for Mr. Lee and his family. Mr. Lee and his family are directly and substantially financially harmed by the passage of SB 670.

78. Mike Holt has been a suction dredge miner in California for over 24 years. Mr. Holt is a member of PLP. Mr. Holt has mining claims and estates on Federal land in California in the Tahoe National Forest. Mr. Holt has also engaged in suction dredge mining on private properties, for which he needs permits from DF&G. Mr. Holt has permits from DF&G to engage in suction dredge mining in California. Mr. Holt has paid DF&G for these permits. Mr. Holt has spent substantial sums in order to engage in suction dredge mining. Suction dredge mining has provided the main source of income for Mr. Holt and his family. Suction dredge mining has allowed Mr. Holt to support his wife and four children, and in these difficult economic times, to continue to help out his children economically. Mr. Holt and his family are directly and substantially financially harmed by the passage of SB 670.

79. Todd Bracken has been a suction dredge miner in California for over 15 years. Mr. Bracken has been awarded a Certificate of Recognition by the California State Assembly for his mining activities on his family’s historic mining claims, and his use and popularization of California gold throughout the world in his artistic creations. Mr. Bracken is a member of PLP. Mr. Bracken has mining claims and estates on Federal land in California on the Yuba River. Mr. Bracken has permits from DF&G to engage in suction dredge mining in California. Mr. Bracken has paid DF&G for these permits. Mr. Bracken has spent substantial sums in order to engage in suction dredge mining. Suction dredge mining has provided additional income for Mr. Bracken and his family. Mr. Bracken takes much of the gold he obtains from suction dredge mining and uses it to make fine jewelry. Mr. Bracken sells that jewelry throughout the United States and in foreign commerce. This involves many thousands of dollars in sales per year. Mr. Bracken maintains a website advertising his jewelry for sale. That website states that Mr. Bracken sells natural California gold jewelry. California gold commands a higher price in the market place because of its natural purity and the history of gold mining associated with California. The prohibition of suction dredge mining in California dramatically and drastically affects Mr. Bracken’s mining and jewelry business, and its economic viability. Mr. Bracken and his family are directly and substantially financially harmed by the passage of SB 670.

80. Shannon Poe is suction dredge miner in California. Mr. Poe is a member of PLP. Mr. Poe has mining claims and estates on Federal land in California, including National Forest and Bureau of Land Management lands in California. Mr. Poe has permits from DF&G to engage in suction dredge mining in California. Mr. Poe has paid DF&G for these permits. Mr. Poe has spent over $27,000.00 since January 1, 2009 in order to engage in suction dredge mining. Suction dredge mining has provided additional income for Mr. Poe and his family. Mr. Poe and his family are directly and substantially financially harmed by the passage of SB 670.

81. David Richard has been a suction dredge miner in California for over 20 years. Mr. Richard is a member of PLP. Mr. Richard has mining claims and estates on Federal land in California. Mr. Richard has permits from DF&G to engage in suction dredge mining in California. Mr. Richard has paid DF&G for these permits. Mr. Richard has spent substantial sums in order to engage in suction dredge mining. Suction dredge mining has provided additional income for Mr. Richard and his family. Mr. Richard and his family are directly and substantially financially harmed by the passage of SB 670.

82. Defendant State of California is a State of the United States, one of whose agencies is the California Department of Fish and Game (“DF&G”).

83. Defendant Arnold Schwarzenegger is the Governor of the State of California, and is sued in his official capacity as Governor.

84. The California Department of Fish and Game is a department of the Executive Branch of the State of California, and among its other duties, is responsible for the issuing of permits for vacuum and suction dredge mining in the rivers, streams, lakes, and waterways within California.

85. Defendant Donald Koch is Director of the California Department of Fish and Game, and is sued in his official capacity as Director of the aforesaid Department.

86. The true names and capacities, whether individual, corporate, associate, or otherwise, of Defendants DOE 1 through DOE 20 are unknown to Plaintiffs at this time, who therefore sue said Defendants by such fictitious names and will ask leave of Court to amend this Complaint to show their true names and capacities when the same are ascertained. Said Defendants are sued as principals and/or agents, servants, and employees of said principals, and all of the acts performed by them as agents, servants, and employees were performed within the course and scope of their authority and employment. Each of the Defendants is in some way responsible for the injuries sustained by the Plaintiffs.

87. At all times herein, all named Defendants and Defendants DOES 1 though 20 inclusive, and each of them, were the agents and employees of each of the remaining Defendants and were at all times acting within the purpose and scope of said agency and employment and each Defendant ratified and approved the acts of its agent.

CLAIMS FOR RELIEF

COUNT I: Preemption and the Supremacy Clauses

88. Plaintiffs repeat and incorporate by reference the allegations of Paragraphs 1 through 87 of this Complaint.

89. The heaviest concentrations of placer gold and other valuable minerals on unpatented mining claims held under Federal law, and on unclaimed Federal lands open to mining, are in waterways where a natural concentration of gold and other valuable minerals is in the gravels and on or near the bedrock of the riverbed or streambed. The only viable, economic and environmentally sound manner to recover the placer gold under these conditions is through use of a suction dredge. Suction dredge mining is the highest and best use for placer mining claims. Miners and prospectors have a federally granted right to use such waters in order to develop their mining claims and mineral estates. 16 U.S.C. § 481 (Use of Waters). All state laws, or regulations, in conflict with this right, are void and of no effect. 43 CFR § 3809.3.

90. Miners and prospectors have a statutory right, not a privilege, to go upon open Federal public domain lands for mineral prospecting, exploration, and development. Administrators may not unreasonably restrict the exercise of that right. The Federal Mining Law of 1872, as amended (30 U.S.C. § 21 et seq.), provides that all valuable mineral deposits in lands belonging to the United States shall be free and open to exploration and development. The Supremacy Clause of the United States Constitution, Article VI, Clause 2, further provides that “the laws of the United States . . . shall be the supreme law of the land . . . with anything in the laws of any state to the contrary notwithstanding”. Article IV, § 3, of the United States Constitution, provides that “Congress shall have the power to dispose of and make all needful rules and regulations respecting the territory or other property belonging to the United States.” The absolute prohibition of SB 670 of vacuum or suction dredge mining in the rivers, streams, lakes, and waterways for Federal mining claims within Federal lands in the State of California, directly conflicts with those Federal mining laws, and violates the Supremacy Clause and Article IV, § 3, of the United States Constitution.

91. Plaintiffs are entitled to secure the necessary permits to conduct vacuum or suction dredge mining operations on Federal lands, and the rivers, streams, lakes, and waterways within those Federal lands, pursuant to, and including, without limitation, the Mining Acts of 1866 and 1870, the Mining and Minerals Policy Act of 1970, 30 U.S.C. § 21a.; the Federal Mining Law of 1872, as amended (30 U.S.C. § 21 et seq.); 16 U.S.C. § 481, (Use of Waters); the Stock Raising Homestead Act of 1916 (Ch. 9, 39 Stat. 862, codified at 43 U.S.C. § (1976); the Federal Land Policy and Management Act of 1976 (“FLPMA”) 43 U.S.C. § 1701 et seq., including without limitation §§ 1732(b), 1761 and 1769; the National Forest Management Act (“NFMA”); 16 U.S.C. § 1600 et seq. (1976); Multiple Surface Use Sustained Yield Act (“MUSYA”); 16 U.S.C. § 528 et seq. (1960); Multiple Surface Use Act, 30 U.S.C. §§ 612, 613, 615; Americans with Disabilities Act, 42 U.S.C. § 12132; 5 U.S.C. §§ 601, 602, 603(b), Regulatory Flexibility Act As Amended By The Small Business Regulatory Enforcement Fairness Act of 1996; 5 U.S.C. §§ 801-808) [sBREFA]; the National Environmental Policy Act of 1969 (42 U.S.C. § 4321 et seq.); and numerous sections of the Code of Regulations (“CFR”), including without limitation, 36 CFR 228 et seq.; 36 CFR 261 et seq.; 43 CFR § 3800; 43 CFR § 3809.1 et seq., including without limitation, 43 CFR § 3809.3. Thus, SB 670’s absolute prohibition of vacuum or suction dredge mining in the rivers, streams, lakes, and waterways within those Federal lands violates Plaintiffs’ rights pursuant to the aforesaid statutes, rules, and regulations mandated by Congress.

92. SB 670 is prohibitory, not regulatory, in its fundamental character. It strikes at the central purpose and objectives of the applicable Federal law regarding mining. Through SB 670, the State of California attempts to substitute its political judgment for that of Congress. The Federal government has authorized a specific use of Federal lands for mining, and California cannot prohibit that use either temporarily or permanently.

93. Vacuum and suction dredge mining is the only practical way any of the Plaintiffs can economically mine the valuable mineral deposits located in the rivers, streams, lakes, and waterways within Federal lands in California. SB 670 is a de facto prohibition on all such mining. To the extent DF&G may issue permits, plaintiffs are entitled to secure the necessary permits to conduct vacuum and suction dredge mining operations on Federal and non-Federal lands within the State of California pursuant to, and including without limitation, the above-stated statutes and regulations. Thus, SB 670’s absolute prohibition of vacuum and suction dredge mining in the rivers, streams, lakes, and waterways within Federal and non-Federal lands, violates Plaintiffs’ rights thereto. SB 670 directly conflicts with Federal law relating to mining, and stands as an obstacle to the accomplishment of the full purposes and objectives of Congress in enacting not only the mining laws but all other laws stated above. All matters dealt with by SB 670 are preempted and fully occupied by the laws of the United States, including without limitation, its mining laws, its environmental laws, its laws relating to clean water, 33 U.S.C. § 1151, et seq. (2004), and its laws relating to endangered species, 16 U.S.C. §§ 1531, et seq. (2004).

94. The issuance of a permit for vacuum or suction dredge mining to a mining claim owner, miner and/or prospector by DF&G is a non-discretionary act, and not a discretionary act. The mining laws, as set forth above, give to the miner and/or prospector an absolute and exclusive right to enter and use the Federal public lands, and the rivers, streams, lakes and waterways running therein, for the purpose of mining and developing his or her mineral estate. The Mining Act of 1866 states:

“That the mineral lands of the public domain, both surveyed and unsurveyed, are hereby declared to be free and open to exploration and occupation by all citizens of the United States, and those who have declared their intention to become citizens, subject to such regulations as may be prescribed by law, and subject also to the local custom or rules of miners in the several mining districts, so far as the same may not be in conflict with the laws of the United States.”

COUNT II: Deprivation of Property and Due Process

95. Plaintiffs repeat and incorporate by reference the allegations of Paragraphs 1 through 94 of this Complaint.

96. Prior to the passage of SB 670, plaintiffs invested many thousands of dollars in order to be able to engage in vacuum and suction dredge mining. Plaintiffs obtained Federal mining claims, invested substantial sums in those claims, kept those claims current, paid taxes on those claims, bought and sold equipment, paid permit fees to DF&G, and otherwise spent substantial sums of money for the purpose of conducting mineral exploration and development pursuant to the laws of the United States and the State of California.

97. The due process clauses of the 5th and 14th Amendments to the United States Constitution, and Article I § 7(a) of the Constitution of California, prohibit the deprivation of property without due process of law. The Plaintiffs have constitutionally protected property rights and mineral estates that they own or lease in California. The passage of SB 670 makes such property and mineral estates worthless or near worthless. The State of California, through

and by the passage of SB 670, has wrongfully taken plaintiffs’ property without compensation in violation of the Constitution of the United States and the Constitution of the State of California.

98. Defendants, through the passage of SB 670, have deprived the Plaintiffs of their property rights without procedural due process of law in at least the following ways:

a. Failing to give the Plaintiffs notice and an opportunity for a hearing prior to the deprivations; and

b. Failing to provide a mechanism for the Plaintiffs to contest the deprivations of their property rights once they occurred.

99. Defendants, through the passage of SB 670, have deprived the Plaintiffs of substantive due process under the 5th and 14th Amendments of the Constitution of the United States and Article I § 7(a) and Article I §§ 7(a) and 19 of the Constitution of California in at least the following ways:

a. Defendants’ deprivations of Plaintiffs’ property rights are arbitrary and capricious;

b. SB 670 has no rational relationship to any legitimate public purpose; rather it was motivated solely by the improper political purpose of totally prohibiting vacuum or suction dredge mining in the rivers, streams, lakes, and waterways of California;

c. SB 670 singles out Plaintiffs for extraordinary treatment different from that accorded to all other potential mineral developers that utilize different methods of mining, or use suction dredge equipment for extensive non-mining purposes. These extensive non-mining purposes have the same effect as suction dredge mining for minerals, and in many cases, far exceed any disturbance to the rivers, streams, lakes, and waterways of California, and the biota therein, allegedly caused by suction dredge mining;

d. SB 670 is in direct conflict with the laws of the United States, which state that the mining of minerals on and within Federal lands is necessary for the economic development and security of the United States.

e. SB 670 is in direct conflict with the laws of the State of California, which assert that mining of minerals within the State is necessary for the economic development of the State and Nation;

f. SB 670 contains no standards to apply in that it affects every river, stream, lake, and waterway in California whether or not there are any fish, aquatic life, or biota therein, or any living organism that could possibly be affected in any way whatsoever by vacuum or suction dredge mining; and

g. SB 670 is in direct conflict with the encouragement of mining, including vacuum or suction dredge mining by and in the State of California, as being essential to the economic well-being of California, its people, and the needs of society. Thus, Defendants deprivation of Plaintiffs’ property is manifestly unfair, given that the Plaintiffs, with the State of California’s encouragement, have made a substantial investment for the exploration and development of minerals through suction dredge mining.

///

///

COUNT III: Denial of Equal Protection

100. Plaintiffs repeat and incorporate by reference the allegations of Paragraphs 1 through 99 of this Complaint.

101. The Plaintiffs are entitled to equal protection under the laws of California pursuant to the Fourteenth Amendment to the Constitution of the United States, and Article I § 7(a) of the Constitution of the State of California.

102. Defendants, through the passage of SB 670, specifically intended to deny, and have denied, Plaintiffs the same treatment, privileges, and immunities received by all other mine owners and operators, or potential mine owners or operators, that utilize other than vacuum or suction dredge mining methods, or users of vacuum and suction dredge equipment for purposes other than mining within the rivers, streams, lakes, and waterways of California.

103. There is no rational basis for this difference and treatment which has denied Plaintiffs’ equal protection under the laws.

COUNT IV: Taking of Property Without Compensation

104. Plaintiffs repeat and incorporate by reference the allegations of Paragraphs 1 through 103 of this Complaint.

105. Defendants, through the passage of SB 670, have deprived Plaintiffs of their mineral rights and estates within the rivers, streams, lakes, and waterways of California in violation of the 5th and 14th Amendments to the Constitution of the United States; and Article I § 7(a) and Article I § 19 of the Constitution of California.

106. SB 670 contains no provision for compensating the Plaintiffs for the substantial property deprivations they have suffered, and will suffer, and the defendants have not compensated, nor offered to compensate, Plaintiffs for such deprivation. Defendants have made clear that they do not intend to offer any such compensation.

107. Plaintiffs are entitled to just compensation for their property taken.

108. The Defendants’ actions in preparing, adopting, and implementing SB 670 and other rules and policies that interfere with, and prohibit, the Plaintiffs’ rights to prospect, and to access their mining claims and mineral estates in the rivers, streams, lakes, and waterways of California, were without public purpose, and in direct conflict with the laws of the United States. Such actions have caused and will continue to cause immediate, direct, adverse and irreversible harm to Plaintiffs and other miners and prospectors.

COUNT V: Violation of Civil Rights

109. Plaintiffs repeat and incorporate by reference the allegations of Paragraphs 1 through 108 of this Complaint.

110. Defendants, through the passage of SB 670, have deprived Plaintiffs of their mineral rights, estates, and property within the rivers, streams, lakes, and waterways of California, as well as depriving Plaintiffs of rights, privileges, and immunities secured by the Constitution and laws of the United States, as well as the Constitution and laws of the State of California, pursuant to 42 U.S.C. § 1983. Plaintiffs are entitled to attorneys’ and experts’ fees and costs pursuant to 42 U.S.C. § 1988.

///

///

///

COUNT VI: Violation of the Mining and Minerals Policy Act of 1970,

30 U.S.C. § 21a

111. Plaintiffs repeat and incorporate by reference the allegations of Paragraphs 1 through 110 of this Complaint.

112. The Mining and Minerals Policy Act of 1970, 30 U.S.C. § 21a, declares that it is the continuing policy of the Federal Government to foster and encourage private enterprise in the development of a stable domestic minerals industry and the orderly and economic development of domestic mineral resources. This act includes all minerals, including sand and gravel, geothermal, coals, and oil and gas. 30 U.S.C. § 615 prohibits the interference, limitation, or restriction of any existing rights to any Federal mining claimant holding a valid mining claim on Federal lands.

113. SB 670 hinders the national policy as expressed by Congress to foster and develop mining and mineral resources. The actions of Defendants as set forth above, in closing and prohibiting vacuum and suction dredge mining in the rivers, streams, lakes, and waterways within Federal lands in California violates the policy of the Mining and Minerals Policy Act as set forth above.

114. Defendants’ actions were in direct violation of Congressional intent and purpose as set forth above, and an abuse of Plaintiffs’ rights. These actions of Defendants have caused, and will continue to cause, immediate, direct, adverse, and irreversible harm to Plaintiffs, other miners and prospectors, and the United States, as well as the State of California.

///

///

///

COUNT VII: Violation of 30 U.S.C. §§ 21-54 (Mining Act)

115. Plaintiffs repeat and incorporate by reference the allegations of Paragraphs 1 through 114 of this Complaint.

116. 30 U.S.C. § 22 states that: “Except as otherwise provided, all valuable mineral deposits in lands belonging to the United States, both surveyed and unsurveyed, shall be free and open to exploration and purchase, and the lands in which they are found to occupation and purchase, by citizens of the United States and those who have declared their intention to become such, under regulations prescribed by law, and according to the local customs or rules of miners in the several mining districts, so far as the same are applicable and not inconstant with the laws of the United States”. 30 U.S.C. § 615 prohibits the interference, limitation, or restriction of any existing rights of any mining claimant holding a valid mining claim on Federal lands.

117. The lands of the United States cannot be free and open to exploration if the historical means of development and utilization by prospectors and miners can be prohibited by SB 670’s prohibitions and closures, either temporarily or permanently, in an attempt to substitute any other judgment for that of Congress. SB 670 is prohibitive and not merely regulatory.

118. The actions of SB 670 as set forth above in closing and prohibiting vacuum and suction dredge mining to prospecting and developing of mining claims in the rivers, streams, lakes, and waterways of California within Federal lands violates the purpose of the aforesaid Act.

119. Defendants’ actions in violating 30 U.S.C. §§ 21-54 (Mining Act) were in direct violation of Congressional intent and purpose as set forth above, and an abuse of Plaintiffs’ rights. These actions have caused and will continue to cause, immediate, direct, adverse, and irreversible harm to Plaintiffs, other miners and prospectors, as well as citizens of the United States who wish to become prospectors and miners.

COUNT VIII: Violation of Plaintiffs’ Implied Rights to Use Public Lands

120. Plaintiffs repeat and incorporate by reference the allegations of Paragraphs 1 through 119 of this Complaint.

121. The mining laws, and other statutes enacted by Congress, granting the right to prospect and mine on the public lands throughout the Western United States, including California, as well as the granting of mining claims and mineral estates to Plaintiffs, and other miners and prospectors, implies a right of access to the minerals therein accompanying the grant, arising out of the rules and customs of prospectors and miners to use such methods as are available for prospecting and mining on Federal lands, and to access their mining claims and mineral estates in an unimpeded manner. Closure by SB 670 to vacuum and suction dredge mining on the rivers, streams, lakes, and waterways of California within Federal lands adversely and unlawfully interferes with their implied right, causing them harm and damages.

122. The actions of SB 670, as set forth above, in closing and prohibiting vacuum and suction dredge mining or prospecting and developing of mining claims in the rivers, streams, lakes, and waterways of California within Federal lands violates the aforesaid implied right of Plaintiffs. Therefore, Plaintiffs are entitled to an order quieting title to their mining claims and mineral estates, including their right to use vacuum and suction dredge mining in prospecting on Federal lands, and developing their aforesaid mining claims and mineral estates. 28 U.S.C. § 2409 (a).

123. The Defendants’ actions in preparing, adopting and implementing the proposed closure and prohibition, and other rules and policies that interfere with the Plaintiffs’ implied right were in unlawful derogation of Plaintiffs’ rights. Such actions have caused and will continue to cause immediate, direct, adverse and irreversible harm to Plaintiffs, and other miners and prospectors.

COUNT IX: Unlawful Interference with Commerce

124. Plaintiffs repeat and incorporate by reference the allegations of Paragraphs 1 through 123 of this Complaint.

125. Plaintiffs are small business entities that engage in interstate and foreign commerce. The Federal government encourages and favors small business entities. It has established the Small Business Administration to assist such entities, and has passed special laws, rules, and regulations favoring and protecting small business entities. Regulatory Flexibility Act (5 U.S.C. § 603(b) as amended by The Small Business Regulatory Enforcement Fairness Act Of 1996) 5 U.S.C. §§ 801-808.

126. The Plaintiffs sell or buy valuable minerals obtained through vacuum or suction dredge mining in California on federal lands. Plaintiffs sell such minerals throughout the United States and in foreign commerce. Plaintiffs also use such minerals obtained from federal lands in the manufacture of valuable products that are sold throughout the United States and in foreign commerce.

127. Many citizens of other States and foreign countries come to California in order to engage in vacuum and suction dredge mining for valuable minerals. These non-California citizens purchase permits from DF&G in order to engage in vacuum or suction dredge mining.

128. The total amount of money spent and invested by these mining claim owners, prospectors and miners in suction dredge mining amounts to many millions of dollars each year. The Plaintiffs, and other prospectors and miners, including non-citizens of California, as set forth above, engage in these activities that are specifically authorized, protected, and encouraged by Congress. The Plaintiffs, and other prospectors and miners, including non-citizens of California, engage in interstate and foreign commerce, as set forth above, such interstate and foreign commerce being specifically authorized, protected, and encouraged by Congress.

129. Plaintiffs, and other persons, as set forth above, spend many millions of dollars each year on goods, services, equipment, food, and other supplies both in and out of the State of California in order to engage in suction dredge mining within the State of California.

130. SB 670, by imposing a total prohibition on suction dredge mining in the State of California constitutes an impermissible burden on interstate and foreign commerce in direct

violation of the Constitution of the United States, Article I, § 8, and in direct conflict and in direct violation of the intent and purpose of Congress.

131. Defendants’ actions constituting an undue burden on domestic and foreign commerce are in violation of the Constitution of the United States, Article I, § 8, and are in violation of Congressional intent and purpose as set forth above, and an unlawful derogation and prohibition of Plaintiffs’ rights. These actions have caused, and will continue to cause, immediate, direct, adverse, and irreversible harm to Plaintiffs, non-citizens of California, other miners and prospectors, and citizens of the United States who wish to become prospectors and miners.

COUNT X: Injunctive Relief

132. Plaintiffs repeat and incorporate by reference the allegations of Paragraphs 1 through 131 of this Complaint.

133. Plaintiffs request injunctive relief, since the harm to them from the actions of the Defendants in enacting and implementing SB 670 prohibits them from prospecting and accessing their mining claims and mineral estates in the rivers, streams, lakes, and waterways in California within Federal lands. This causes damage to them which is immediate and irreparable, because they must be able to use vacuum and suction dredge methods of mining and prospecting in order to feasibly and economically prospect and mine on their mining claims and mineral estates.

134. The actions of the Defendants as set forth above in closing and prohibiting vacuum and suction dredge mining and prospecting and developing of their mining claims and mineral estates causes Plaintiffs irreparable harm and entitles them to immediate injunctive relief.

135. The Defendants’ actions in preparing, adopting and implementing the closure, prohibition, and other rules and policies that interfere with the Plaintiffs’ rights to prospect, and to access their mining claims and mineral estates as set forth above, are in derogation of Plaintiffs’ rights. Such actions by Defendants have caused, and will continue to cause, immediate, direct, adverse and irreversible harm to Plaintiffs and other miners and prospectors.

136. Plaintiffs are entitled to an immediate injunction, including, without limitation, a temporary restraining order, preliminary injunction, and permanent injunction, enjoining and restraining Defendants from the implementation and enforcement of SB 670, and enjoining and restraining Defendants from interfering with Plaintiffs’ rights to prospect, to access and develop their mining claims and mineral estates, as set forth above, through all lawful means, including, without limitation, motorized mining methods such as vacuum and suction dredging, or by other lawful means.

///

COUNT XI: Damages

137. Plaintiffs repeat and incorporate by reference the allegations of Paragraphs 1 through 136 of this Complaint.

138. As a direct and proximate result of the aforesaid violations by Defendants as set forth in Counts I – X of this Complaint, Plaintiffs have suffered present and future damages in an amount not presently ascertainable, the exact amount to be proven at trial.

DEMAND FOR JURY TRIAL

PRAYER FOR RELIEF

WHEREFORE, Plaintiffs respectfully pray that this Court:

1. Adjudge and declare that the challenged prohibition and closure of the rivers, streams, lakes, and waterways in California is unlawful pursuant to all the acts, laws, and regulations as set forth in Counts I – XI of this Complaint, and that Defendants have acted beyond the scope of their legal authority in adopting those actions, and that such actions violate the Constitution of the United States, and the State of California as set forth above;

2. Enjoin and restrain Defendants, their agents, employees, successors, and all persons acting in concert or participating with them, from enforcing or implementing, and requiring others to enforce or implement, the aforesaid prohibition and closure and related rules, regulations, and polices; and issue a temporary, preliminary and/or permanent injunction against Defendants pursuant to Rule 65, Federal Rules of Civil Procedure;

3. Declare unlawful and set aside SB 670, as being in violation of the Constitution of the United States,and the laws of the United States, as well as the Constitution of the State of California;

4. Issue and order quieting title to Plaintiffs’ mining claims and mineral estates by determining Plaintiffs’ aforesaid property is benefited by an implied right to use vacuum and suction dredge mining in order to prospect on Federal lands and develop Plaintiffs’ mining claims and mineral estates.

5. Grant such damages as are proven at trial, with interest on the damages at the maximum annual rate as allowed by law, from such earliest date as allowed by law;

6. Award the Plaintiffs their reasonable attorneys fees and costs, including expert costs, and expenses of litigation as allowed by law, including, without limitation, and as applicable, the Equal Access to Justice Act, 28 U.S.C. § 241, et seq.; 42 U.S.C. § 1988, California Code of Civil Procedure § 1021.5, the common fund doctrine, and other applicable laws, concepts or doctrines, whether legal or equitable, rules of Court, or other rules and regulations; and

7. Grant such other and further relief as the Court deems just and proper, including an award of attorney’s fees, costs, and expenses.

Dated: September 14, 2009 LAW OFFICES OF DAVID YOUNG

By /s/ David Young David Young

Attorneys for Plaintiffs

Share this post


Link to post
Share on other sites

Did anybody ever ponder that:

There are about 211500 miles of rivers and streams in CA. (source epa.com)

There are about 3000 dredging permits issued in CA each year. (source CA DF&G)

That means there is about 70 miles of rivers and streams for each dredge in CA. :innocent0009:

Talk about a negligible effect. :laught16:

Share this post


Link to post
Share on other sites

  • Recently Browsing   0 members

    No registered users viewing this page.

×
×
  • Create New...