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old gold miner

SB 670 Ca dredge ban

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When old gold miners have a hunch something of value is buried deep somewhere, they have the natural ingrained tenacity to keep digging, until they either go bust, drop dead, or find it. In reviewing this CEQA initial study report, and preparing written comments for submittal. I notice something, so obscure anyone but a seasoned old prospector would probably not take notice of, or take the time to inspect. Nor, for that matter make the effort to ferret out its worth, if any.

Now, imagine an old gold miner, hunched over a prospect hole, he had laboriously dug into for days on end.

Suddenly, he stands, inspects something in his hand, and shouts.......Eureka! I found it!

Then, does quick little jig, places his find, in his poke, and sets off towards the nearest town at a fast pace, chuckling to himself, as he goes.

Reality is, that’s not the actual scene. But, the circumstance is the same. Follow along, if you wish.

________________________________

Page. 28 & 29

Notice of Preparation / Initial Study

Project No. 09.005

The environmental factors checked below would potentially be affected by this project (i.e., the project would involve at least one impact that is a “Potentially Significant Impact”), as indicated by the checklist on the following pages.

CHECK LIST

Aesthetics (checked)

Air Quality (checked)

Biological Resources (checked)

Cultural Resources (checked)

Hazards and Hazardous Materials (checked)

Hydrology/Water Quality (checked)

Noise (checked)

Recreation (checked)

Mandatory Findings of Significance (checked)

Mineral Resources (NOT CHECKED)

Signed, John McCamman, Chief Deputy Director 10/26/09

_______________________________________________________________________

The Chief Deputy Director of CDFG has made a knowingly deliberate, and utterly false official written statement here, by not checking the “Mineral Recourse” checklist box in this official CEQA initial study report. The consequence, of which might not seem readily apparent, nor even significant. However, I assure you, it is strikingly significant in several differing aspects involved here.

It is common knowledge, and utterly indisputable that gold, platinum, and other associated extremely valuable minerals are certainly “Mineral Resources”.

It is common knowledge, and utterly indisputable that these valuable mineral resources certainly exist as placer deposits, within waterways throughout California.

It is common knowledge, and utterly indisputable that “suction dredging” is a widespread modern efficient small scale mining method thoughout California.

Clearly, that is what triggered this CEQA study.

It is common knowledge, and utterly indisputable that small scale suction dredging is usually profitable. Otherwise, no prudent person would invest in a suction dredge, nor spend time performing arduous labor to do it.

It is common knowledge, and utterly indisputable that relatively significant amounts of gold, and other valuable minerals are recovered by small scale suction dredging annually in California.

Given this indisputable series of facts. It is not possible by any stretch of imagination, or reality. That the Chief Deputy Director of CDFG, the very state agency that regulates all suction dredge permitting statewide throughout California, could assert small scale “suction dredging” does not involve, nor have a potentially significant impact on “Mineral Resources” within California.

Doing so, clearly and profoundly impugns the Chief Deputy Directors professional credibility, as well as destroys the reliability and total integrity of the very CEQA study, he now directs. Why the head of public agency would make a deliberate false statement in an official state document, is by itself incredulous. So, giving him the benefit of doubt, that is sane, there must be some other devious factor behind him doing it.

Impart, I gather no one caught this in the 1994 CEQA study, nor to date. If that is fact, then, I would assume the thinking in the present day high circles of CDFG is;

We got away with it once back then. No one ever caught on. Lets just do it again, here.

WRONG ANSWER

The reason that check list box is not checked, involves both CEQA & Surface Mining and Reclamation Act (SMARA) provisions.

The CEQA provisions impart are:

California Environmental Quality Act (CEQA) Guidelines Appendix G states that a project would have a significant impact on mineral resources if it would:

a. Result in the loss of availability of a known mineral resource that would be of value to the region and the residents of the state.

b. Result in the loss of a locally important mineral resource recovery site delineated on a local general plan, specific plan, or other land use plan.

(note, USFS & BLM lands -open to mineral entry- are all covered with federal land use plans that provide for both mining claims & mining on them)

SMARA provisions provide for a mineral lands inventory process termed classification-designation. The California Division of Mines and Geology, and the State Mining and Geology Board are responsible for administering this process and have statutory authority over it.

Areas are classified on the basis of geologic factors, without regard to existing land use and land ownership. The areas are categorized into four Mineral Resource Zones (MRZs).

The primary goal of the mineral land classification is to ensure that the mineral potential of the land is recognized by government decision-makers and considered before making land use decisions that could preclude mining.

CGS’s Special Publication 51 provides the guidance for MRZ identification; the criteria for establishing the zones are based on four general categories:

MRZ-1 applies to areas where adequate information indicates that no significant mineral deposits are present, or where it is judged that little likelihood exists for their presence.

MRZ-2 applies to areas where adequate information indicates that significant mineral deposits are present, or where it is judged that a high likelihood exists for their presence.

MRZ-3 applies to areas containing mineral deposits, the significance of which cannot be evaluated.

MRZ-4 applies to areas where available information is inadequate for assignment to any other zone.

Of the four categories, lands classified as MRZ-2 are of the greatest importance.

Such areas are underlain by demonstrated mineral resources where geologic data indicate significant measured or indicated resources are present. MRZ-2 areas designated by the Mining and Geology Board as "regionally significant" are incorporated by regulation into Title 14,Division 2 of the California Code of Regulations.

Such designations require that a lead agency’s land use decisions involving designated areas be made in accordance with its mineral resource management policies, and that it consider the importance of the mineral resource to the region or the state as a whole, not just to the lead agency’s jurisdiction.

SMARA provisions also exempt from permitting "prospecting for, or the extraction of, minerals for commercial purposes where the removal of overburden or mineral product totals less than 1,000 cubic yards in any one location, and the total surface area disturbed is less than one acre". Public Resources Code § 2714 (d)

Given that provisions of CEQA mandate SMARA application in a CEQA project, if “Mineral Resources“ are involved. Another set of governing standards must be included within this CEQA process, otherwise it is fundamentally flawed from the onset, and any result, or determination made within it is illegitimate, and contrary to law.

The reason, CDFG intentionally omitted “Mineral Resources” is that whatever the outcome, when SMARA is included. SMARA determinations & law, would conflict with the purpose, and intent of CDFG’s findings. The end result being SMARA says you can, CDFG determinations, and any resulting regulations says you cannot.

Which would be arbitrary, capricious, an abuse of discretion or otherwise not in accordance with law, any way it might appear in CEQA documents.

Obviously, CDFG must have an Attorney Generals legal opinion to clarify how they can proceed here. Because, once they have written notice, or accept verbal or written comment regarding SMARA & facts pointed out here. They cannot deny actual or constructive notice of it. And, cannot proceed without inclusion of SMARA. This is, of course assumming they intend to proceed on sound legal footing. :inocent:

If any public funds are expended, for costs involved in public meetings, or any proceeding, or study, that is not based on sound legal footing, and at any later date, any such meeting, proceeding or study is required by law to be repeated in full conformity with all applicable law. Duplicate spending to cover what should have been done right, the first time, is a total waste. For which someone must be held responsible. I would not want to be that person. :inocent:

.................... :olddude:

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I’m not familiar with the California criminal code.

But, assume it has similar provisions to Federal Code, such as:

18 U.S.C. § 1001 : US Code - Section 1001: Statements or entries generally

(a) Except as otherwise provided in this section, whoever, in any matter within the jurisdiction of the executive, legislative, or judicial branch of the Government of the United States,

knowingly and willfully -

(1) falsifies, conceals, or covers up by any trick, scheme, or device a material fact;

(2) makes any materially false, fictitious, or fraudulent statement or representation; or

(3) makes or uses any false writing or document knowing the same to contain any materially false, fictitious, or fraudulent statement or entry; shall be fined under this title, imprisoned not more than 5 years.

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The dangers of dredging on California rivers

Saturday, March 07, 2009

By Patricia Wiggins/In the Napa Valley Register

Some environmental problems are abstract, affecting places far away and species rarely seen. Others are as close as our supper plates.

The crash of salmon in California affects us all. This once-abundant fish, famed for huge king salmon in numbers so great they crowded our rivers, is now teetering at the edge of extinction.

These are not just trophy and sport fish. They form the backbone of California ecosystems, tribal cultures, local economies, a commercial fishing industry and a once-plentiful, wonderful food. Most Californians would mourn the loss of salmon, and rightly so.

This will likely be the second year in a row with no commercial or sport ocean salmon season. This is not an anomaly — it is the sad result of a long-term trend that government and the public have been unable to stop. And, as last year’s no-catch season demonstrates, a blanket ban on fishing will not, by itself, reverse that trend.

Salmon have borne the brunt of development in California. With every major dam, they lose habitat. With every ounce of polluted runoff from farm or city, they lose water quality. With every quart pumped from once free-flowing rivers, they lose water. In-stream pumps trap juveniles against screens; invasive species steal habitat and eat young fish; wildland roads dump sediment into streams; and hatchery management practices are incapable of replacing natural spawning. Add to this the natural — and human-induced — changes wrought on climate, the ocean and streambeds, and the salmon face one tough uphill swim.

One pernicious practice affecting water quality and the beds of streams is motorized in-stream gold mining. Gasoline-powered engines on suction dredges on pontoons or rafts are used by people to scoop up riverbeds in order to find grains of gold in Northern California streams. Sediment from suction-mining covers emerging salmon in stream gravel. The suction alone, in the deep, cool parts of wild streams, kills young fish.

Statewide, there are about 3,000 miners operating in places like the Klamath, Scott and Shasta watersheds who buy permits from the California Department of Fish and Game. Resident permits cost about $50. Combined with non-resident permit sales, they generate from $150,000 to $200,000 annually for a program which costs DFG more than $1.25 million each year to enforce.

In contrast, California fishermen buy 2.4 million fishing licenses each year. The sport-fishing industry supports a total of 43,000 jobs paying $1.3 billion in wages and salaries annually. Fishing equipment sales total more than $2.4 billion per year. And salmon, highly susceptible to the impacts from suction dredges, are traditionally the most important fish to Northern California commercial fishermen and native tribes.

Yet late last month, the DFG rejected a petition to restrict mining in areas most important to fish. The department director seemed more swayed by a partisan letter from the Siskiyou County Board of Supervisors in support of the miners than ecological realities. In contrast to overwhelming evidence, the board stated that there is no emergency.

DFG’s action — or rather, the department’s shameful lack of action — is unconscionable. Environmental choices should be based on fact, as well as on fair evaluation of economic realities. Gold mining is a recreational activity. Many commercial fishermen, along with sellers of fishing equipment and others in a multi-million-dollar industry, deserve equal if not greater consideration. DFG has already admitted publicly that the regulatory status quo is harming fish like the coho salmon.

DFG officials have a responsibility to protect our state’s fishery resources, the livelihoods of our fishermen and women, and the supply of local seafood for our tables. And if they don’t fulfill that responsibility, the state legislature, along with other concerned individuals and organizations, must hold them accountable.

Accordingly, I have introduced legislation to ban suction-dredge mining in California. While some miners will denounce a ban as infringing upon their “freedom,” no human beings should be “free” to hasten the elimination of these magnificent fish. And millions of other Californians — including fishing families, recreational fishermen and salmon consumers — have an interest to protect, too.

We are, hopefully, at a turning point on the path of survival for California’s salmon. There is an agreement in principle to remove dams on the Klamath River. There is reconsideration of delta pumping and water management. There are broad efforts to bring back the coho, with many people gritting their teeth to cooperate with a broad range of restrictions, starting with fishermen.

It is time for miners to give up their self-interest, to give these fish a moment to recover. And it’s high time for the DFG to go from protecting miners to protecting fish — for all Californians.

(State Senator Patricia Wiggins, D–Santa Rosa, chairs the Joint Legislative Committee on Fisheries & Aquaculture. She represents California’s 2nd District, which includes Napa County.)

__________________________________________________________

Wiggins article above demonstrates how utterly misinformed she actually is about the facts, and legalities involved with both salmon, and small scale suction dredge gold mining in California.

From the prospective of “legalities”, Wiggins is either ignorant of, or irrationally ignores “private property” law, and all the protections the US Constitution, California’s Constitution, and federal & state law provide for it. The vast majority of small scale suction dredge gold mining in California takes place on “mining claims”. Apparently Wiggins has no comprehension of what mining claims are, nor the “private property” rights such owners have.

Factually, valid mining claims are a form of private property, which are fully protected by the US & California Constitution, and all other law, that protects any other form of private property. Mining claim owners “own” the valuable minerals, such as gold within them. Thus, mining claim owners are entitled to extract gold, on their property, subject only to reasonable regulation. The same as any other property owner has the right to utilize his property, for his own economic benefit.

Wiggins is also ignorant of, or absurdly ignores critical facts about, salmon, and the salmon fishery in general. California law provides sports and commercial fisherman the “mere privilege” to catch & kill fish. The California Department of Fish & Game can modify, suspend, or revoke that license, for good reason, or cause at any time. As a fishing license is neither a “contract”, or “private property” right of any sort. Conversely, a valid mining claim is private property, and the proprietor owns the valuable mineral in it, as well as the right to extract it.

Wiggins contends “…California fishermen buy 2.4 million fishing licenses each year. The sport-fishing industry supports a total of 43,000 jobs paying $1.3 billion in wages and salaries annually. Fishing equipment sales total more than $2.4 billion per year…”

That rational is absurd, in-so-far as she ignores, those 2.4 million fishing licenses, 43,000 jobs, and $1.3 billion in annual fishing equipment sales all exist for the sole purpose of killing fish, not protecting them.

Apparently, Wiggins believes that because more people are involved, and more money is spent annually in California to kill fish. That those same fish should be protected from far fewer people who don’t spend as much money, and never intentionally harm, or kill fish. That reasoning is plainly illogical.

What has happened here, is Wiggins was foolishly hood-winked into believing all the distorted, biased, misinformation that the anti-suction dredge lobby flooded both California, and her with. Wiggins in utter contravention of her duty, as a legislator, failed to ascertain the true facts of the matter, and thoughtlessly threw her support behind them.

Then, Wiggins without full knowledge of the facts, or even comprehension of governing law, or the Constitutionally protected private property rights involved, threw togather badly written legislation creating SB 670. With Wiggins espousing the need for, and the good it would do, she convinced a majority of her fellow legislators, and the governor to pass SB 670, as law.

Which immediately implemented a statewide ban on all suction dredge gold mining, as an “urgency” measure, when no urgency, or emergency existed to support doing so. Within days of passage (August 6th, 2009), SB 670 was profoundly challenged in a federal court action, by Public Lands for People, suction dredge manufactures, and affected private citizens. Even to a laymen, SB 670 is obviously in direct contravention of various United States, and California Constitutional provisions protecting private property, as well as a long list of other associated laws.

I certainly applaud, and support good faith legitimate efforts to protect the environment, and fisheries in California. However, SB 670 is so illegitimate, erroneous, arbitrary, without basis in fact, or law. There is no doubt it will be soundly overturned in federal court, the sooner, the better.

Once that occurs, I would hope Wiggins, all legislators who voted for SB 670, and the Governor, who signed it into law, take full responsibility for all the damage, loss, cost, waste, hardship and harm SB 670 caused to all those it so unfairly, unlawfully, and badly damaged. In her article, Wiggins used the words “shameful” - “unconscionable“ - "pernicious". Once SB 670 is overturned, I would hope Wiggins fully realizes those words apply to her. ............... :olddude:

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And, as last year’s no-catch season demonstrates, a blanket ban on fishing will not, by itself, reverse that trend.

It takes 4-5 years before you can determine if this statement is true or not. Come on Wiggins learn simple salmon biology at least. Each years salmon run is completely different than the year before and are unrelated. The fish are gonna die anyway but they need to breed first to have a chance at replacing themselves. Ban ocean sieve net fishing and maybe the fish will have a chance.

Salmon by their very nature are not a sustainable resource.

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WIGGINS......." Gold mining is a recreational activity".

California has produced about 183 tons of gold.

Do the math at $1000 an ounce.

1 ton = 32,000 ounces

183 X 32,000 = 5,856,000 X 1000 = $5,856,000,000

5 BILLION, 856 MILLION DOLLARS

Recreational, ya right........ :inocent:

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Another intentional omission of material fact & FALSE statement in the initial study report CEQA check list.

The “Land Use / Planning” box is not checked.

45% of California is Federal public domain lands.

Much of which is open to mineral entry under the Federal mining laws.

Much of which is held by mining claims.

Where most small scale suction dredging takes place.

All USFS & BLM lands are under one form or another of Federal “Land Use / Planning” .

Which encourage, provided for & allow mining on Federal lands.

Consequently, under CEQA regulations, this study must take that into consideration.

If not, it is fundamentally & fatally flawed.

Another critical “kink” for the DFG guys to consider.

The lead agency in a CEQA study “MUST” consult with pertinent agencies having statutory authority over land where the “project” takes place. Since 45% of California is Federal public domain, mostly administered under jurisdiction of the USFS & BLM.

DFG better start formal consultation with them.

If not, that’s another fatal error in this CEQA process.

LOL, USFS & BLM will inform DFG, mineral extraction on a valid mining claim is a statutory right of the owner. DFG wants to ignore that fact. They cannot, if they “consult” with USFS & BLM.

Another critical “kink” for the DFG guys to consider.

DFG takes the position, “economic” impact need not be considered in this CEQA study.

WRONG ANSWER

CEQA law makes it mandatory they do.

Read it yourself.

______________________________________________________

CEQA Title 14. Natural Resources

Division 6. Resources Agency

Chapter 3. Guidelines for Implementation of the California Environmental Quality Act

Article 7. EIR Process

§ 15093. Statement of Overriding Considerations.

(a) CEQA requires the decision-making agency to balance, as applicable, the economic, legal, social, technological, or other benefits of a proposed project against its unavoidable environmental risks when determining whether to approve the project. If the specific economic, legal, social, technological, or other benefits of a proposal project outweigh the unavoidable adverse environmental effects, the adverse environmental effects may be considered "acceptable."

_____________________________________________________

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It was very clear to me at the meeting last night that no matter how much they tried to justify their position on how the EIR will be done, it is going to be flawed... but the flaws will certainly cause giant changes in dredging regulations if it is ever allowed again. Pretty much looks like it is going to be totally a subjective study done by an environmental group that knows nothing about dredging.

I also got the feeling they are doing nothing but trying to cover butt for the DFG.

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It was very clear to me at the meeting last night that no matter how much they tried to justify their position on how the EIR will be done, it is going to be flawed... but the flaws will certainly cause giant changes in dredging regulations if it is ever allowed again. Pretty much looks like it is going to be totally a subjective study done by an environmental group that knows nothing about dredging.

I also got the feeling they are doing nothing but trying to cover butt for the DFG.

You got that RIGHT.

Why the hell even waste the money/time/effort.

If at those meetings, you cannot discuss the REAL issues involved.

That makes it all a worthless wasted effort, for all affected suction dredgers.

Not to mention a waste of taxpayers dollars.

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One other thing I think I understood from last night. Since they will never actually study a dredge in operation in a river and only study past studies. Guess where they got all their initial input for the studies allready done, yup you guessed it, from info submitted by the DFG. The DFG it would seem is influencing the study greatly by being the source of previous science (published studys)..... for them to consider.

OGM...... I gave the DFG copies of one of your bits of research with many quotes from previous published studies... Thanks

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One other thing I think I understood from last night. Since they will never actually study a dredge in operation in a river and only study past studies. Guess where they got all their initial input for the studies allready done, yup you guessed it, from info submitted by the DFG. The DFG it would seem is influencing the study greatly by being the source of previous science (published studys)..... for them to consider.

OGM...... I gave the DFG copies of one of your bits of research with many quotes from previous published studies... Thanks

Steve,

At the Sac meeting, were you sitting up front, on the far right, 2nd or 3rd row back?

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CEQA CHECKLIST

Land use planning NOT CHECKED

45% of California is federal public domain.

All of which is under USFS / BLM land use plans

All of which encourages mining, and allow it under USFS & BLM Reg’s.

___________________________________

CEQA § 15086. Consultation Concerning Draft EIR.

(a) The lead agency shall consult with and request comments on the draft EIR from:

(1) Responsible agencies,

(2) Trustee agencies with resources affected by the project, and

(3) Any other state, federal, and local agencies which have jurisdiction by law with respect to the project or which exercise authority over resources which may be affected by the project,

including water agencies consulted pursuant to section 15083.5.

(4) Any city or county which borders on a city or county within which the project is located.

__________________________________________

USFS & BLM exercise authority over mineral resources where almost all small scale suction dredging takes place.

CEQA § 15086 (a) “shall” = Mandatory

Any CEQA “consultation” with USFS/BLM to say the least, will be interesting.

USFS/BLM will inform them "Under the mining laws a person has a statutory right, consistent with Departmental regulations, to go upon the open (unappropriated and unreserved) Federal lands for the purpose of mineral prospecting, exploration, development, extraction and other uses reasonably incident thereto." (See 30 U.S.C. § 21-54, 43 C.F.R. § 3809.3-3, 0-6).

_________________________________________

CEQA § 15086(4) Any city or county which borders on a city or county within which the project is located.

Go Ahead, DFG consult with El dorado County.

Below is El dorado Counties stance re: SB 670

10-06-2009 El dorado County, California, Board of Supervisors passed a resolution urging the California State Legislature and Governor Arnold Schwarzenegger to rescind or amend SB670, a bill that banned suction dredging in California waterways.

Resolution: http://www.co.el-dorado.ca.us/bos/wwwroot/attachments/6a4d4486-d831-4508-bd94-be91a14d2f1c.pdf

Agenda item with supporting documentation: http://www.co.el-dorado.ca.us/bos/wwwroot/detailreport/matter.aspx?key=10883

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Thanks again OGM, the El Dorado resolution and attached documents are a good read, and I agree with there resolution.

I still think there is something more to this SB 670 and why it was passed without sound prudent science and common sense to back it. Same thing with the court ordered ban on suction dredge permits.

My impression was that Judges and legislators are suppose to follow existing laws and not pass laws that conflict with existing laws. Don't they do thourough law research in the law library. What am I missing here, is there a law that says its legal for Judges and legislators to pass laws and judgements that conflict with existing laws, State or Federal.

I'm really trying to understand why these people in high elected positions are ignoring the facts and a lot of peer reviewed science. It just doesn't make sense.

goldfinds

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Fish and Game Code section 5653, subdivision (d). This provision of the Fish and Game Code makes it illegal to possess a vacuum or suction dredge in areas, or in or within 100 yards of waters that are closed to the use of vacuum or suction dredges. Because SB 670 prohibits instream suction dredge mining in any river, stream, or lake in California, suction dredge equipment must be removed from the water even if the equipment is not in use.

http://www.leginfo.ca.gov/pub/09-10/bill/sen/sb_0651-0700/sb_670_bill_20090806_chaptered.pdf

What that means is, along the Klamath, Scott, Trinity, Feather, Yuba, Kern & many many more rivers in CA. Where the river, or any waterway borders, or adjoins those waterways within 300 yards.

You are subject to citation, arrest, etc………if you even trailer a dredge there, in CA.

LOL, I guess, its time to file an NOI to dredge with USFS for a spot on a state hiway, within 300 yards of a Ca waterway, with a nice wide turn out parking spot. With USFS NOI in hand call the CalTIP hotline 1-888-334-2258 ( fish and game violation (extension 03) & report myself.

Set up a tail gate BBQ & wait for the cops to show up.

When they do, state I have FEDERAL PERMISSION to be here & hand then the NOI USFS letter. Not to mention, I am within a right of way on a state or federal highway.

Would be interesting to see if they would issue a citation, or possibly even arrest me. Have had several volunteer to be there to video tape the event. Also, have an attorney that would be present, if I would do it on a Saturday, or Sunday.

I have no fear of a citation, or arrest for that. But, don’t intend to have a legal civil protest of SB 670 & CDFG Reg‘s, until I get my CEQA comments submitted. In case they do arrest me. Don't worry, I would be out in short order & sueing all involved, for big bucks

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Thanks again OGM, the El Dorado resolution and attached documents are a good read, and I agree with there resolution.

I still think there is something more to this SB 670 and why it was passed without sound prudent science and common sense to back it. Same thing with the court ordered ban on suction dredge permits.

My impression was that Judges and legislators are suppose to follow existing laws and not pass laws that conflict with existing laws. Don't they do thourough law research in the law library. What am I missing here, is there a law that says its legal for Judges and legislators to pass laws and judgements that conflict with existing laws, State or Federal.

I'm really trying to understand why these people in high elected positions are ignoring the facts and a lot of peer reviewed science. It just doesn't make sense.

goldfinds

That is EXACTLY what’s wrong with SB 670 & the CDFG Reg’s that enforce it.

SB 670 is contrary to & preempted by FEDERAL LAW.

Not to mention, the CA Constitution & a few other CA state laws.

Apparently, the whole legislature had there head where the sun doesn’t shine,(assuming they are sane) , when they passed it.

As for CA judge rulings, they also chose to ignore federal law & those rulings are all being contested in FEDERAL court. They will be overturned, mark my words.

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I'M GOING TO GET SOME FACTS:

http://www.thefirstamendment.org/publicrecordsact.pdf

California Department of Fish & Game

DFG Headquarters

1416 9th Street, Sacramento, CA 95814

Dear Sir, or Madame;

Pursuant the California Public Records Act ( §§ 6250 - 6276.48), I respectfully request legible copies of any “contract” and/or any/all documents pertinent to the specific terms, conditions, performance, responsibilities, and payments to Horizon Water and Environmental, LLC as it pertains to the California Environmental Quality Act (CEQA) study, as mandated by SB 670 that firm is performing for your agency.

Please advise me in advance if applicable copy fee’s will exceed one hundred dollars ($100).

I look forward to your response, within ten (10) days.

Sincerely,

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The legislative Act SB 670 covers suction dredge gold mining “in any river, stream, or lake of this state”.

The clear intent, and unambiguous language of the Act specifically covers “in-stream“ suction dredging activities only.

DFG’s regulatory authority pursuant to DFG Code section 5653 et seq., pertains to the use of vacuum and suction dredge equipment in California for in-stream mining.

Related provisions of the DFG Code underscore that exact point.

Recently enacted DFG Code section 5653.1 covers the use of suction dredge equipment for in-stream mining.

The critical word in both the SB 670 law, and subsequent CDFG regulation is “in-steam”.

In-stream clearly means in the waters of a stream, river or lake in California.

In effect, anything outside the water, not in-stream in waters of California, on dry land is beyond the scope of both SB 670 law, and subsequent DFG regulations.

Given that explicit statutory, and regulatory limitation pertinent to suction dredge gold mining in California.

DFG has no legal authority to regulate anything about suction dredge gold mining, not in-stream, or otherwise outside waterways in California.

The legal consequence of that is that DFG has no authority to let a contract to any firm to perform a California Environmental Quality Act (CEQA) environmental study, or report concerning anything not in-stream, in any steam, river, or lake in California.

Consequently, the SB 670 CEQA initial study report performed by Horizon Water & Environment greatly exceeds the boundaries of “in-steam” environmental impact.

As the initial study report, by both statutory law, and DFG regulation is expressly limited to in-stream environmental effects.

Thus, all matters within the initial study report relating to:

“Accessing the Site” (5.5.2)

“Delivering Equipment” (5.5.3)

Dry land “Processing of Material” (5.5.7)

“Encampments” (5.5.10)

Dry land “Aesthetics”

Dry land “Air Quality“

Dry land “Biological Resources”

Dry land “Cultural Recourses”

Dry land “Geology & Soils”

Dry land “Hazardous Materials”

Dry land “Noise”

Dry land “Public Services”

Dry land “Recreation”

Are all outside the scope of in-stream environmental impacts this initial study report is allowed to contain.

While SB 670 authorized this CEQA study.

No SB 670 statutory provisions, or DFG regulations exist to authorize the inclusion of any environmental effect anywhere other than “in-stream”, in California waterways.................... :olddude: ............. :rasberry:

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CDFG MUST act according to law, when making “regulation” in California.

CDFG vigorously attempts to circumvent any need or requirement of the law that mandates Federal Mining Law & Economic impacts be considered, or included in this SB 670 CEQA study.

However, APA law governing “regulation” any state agency makes requires they do.

Below is just a tiny part of APA law.

NONE of which CDFG has complied with.

On that basis alone, any CDFG regulation not in compliance with APA.

Is arbitrary, capricious & not according to law.

We have a “unique” situation here. CEQA was never intended to be a tool to implement statewide REGULATION of any small business, or investment based economic endeavor, by private individuals, such as “small scale suction dredge gold mining“.

A CEQA “Project” is “Site Specific”. In this instance the legislature in passing SB 670 made the “Project” statewide. And, mandated implementation of NEW STATE REGULATION to cover it.

That being FACT.

CDFG must implement APA procedure, into the process, beside CEQA.

They have not, nor appear to intend to.

That is contrary to California APA law.

CDFG must comply with APA law, or repeat the process, to do so.

Doing this wrong, the first time, then having to repeat it to correct initial fatal flaws.

Is a WASTE of taxpayer funds.

For which someone must be held responsible.

I would NOT want to be that man.

_______________________________________________________________________

http://www.oal.ca.gov/Administrative_Procedure_Act.htm

The Administrative Procedure Act (APA) establishes rulemaking procedures and standards for state agencies in California. The requirements set forth in the APA are designed to provide the public with a meaningful opportunity to participate in the adoption of state regulations and to ensure that regulations are clear, necessary and legally valid. The APA is found in the California Government Code, section 11340 et seq. State regulations must also be adopted in compliance with regulations adopted by OAL (see California Code of Regulations, Title 1, sections 1-280).

11342.510. Unless the provision or context otherwise requires, the

definitions in this article govern the construction of this chapter.

11342.520. "Agency" means state agency.

11342.535. "Cost impact" means the amount of reasonable range of

direct costs, or a description of the type and extent of direct

costs, that a representative private person or business necessarily

incurs in reasonable compliance with the proposed action.

11342.580. "Plain English" means language that satisfies the

standard of clarity provided in Section 11349.

11342.590. "Prescriptive standard" means a regulation that

specifies the sole means of compliance with a performance standard by

specific actions, measurements, or other quantifiable means.

11342.595. "Proposed action" means the regulatory action, notice of

which is submitted to the office for publication in the California

Regulatory Notice Register.

11342.600. "Regulation" means every rule, regulation, order, or

standard of general application or the amendment, supplement, or

revision of any rule, regulation, order, or standard adopted by any

state agency to implement, interpret, or make specific the law

enforced or administered by it, or to govern its procedure.

11342.610. (a) "Small business" means a business activity in

agriculture, general construction, special trade construction, retail

trade, wholesale trade, services, transportation and warehousing,

manufacturing, generation and transmission of electric power, or a

health care facility, unless excluded in subdivision (B), that is

both of the following:

(1) Independently owned and operated.

(2) Not dominant in its field of operation.

11346.2. Every agency subject to this chapter shall prepare, submit to the office with the notice of the proposed action as described in Section 11346.5, and make available to the public upon request, all of the following:

(a) A copy of the express terms of the proposed regulation.

(1) The agency shall draft the regulation in plain, straightforward language, avoiding technical terms as much as possible, and using a coherent and easily readable style. The agency shall draft the regulation in plain English.

(2) The agency shall include a notation following the express terms of each California Code of Regulations section, listing the specific statutes or other provisions of law authorizing the adoption of the regulation and listing the specific statutes or other provisions of law being implemented, interpreted, or made specific by that section in the California Code of Regulations.

(3) The agency shall use underline or italics to indicate additions to, and strikeout to indicate deletions from, the California Code of Regulations.

(B) An initial statement of reasons for proposing the adoption, amendment, or repeal of a regulation. This statement of reasons shall include, but not be limited to, all of the following:

(1) A statement of the specific purpose of each adoption, amendment, or repeal and the rationale for the determination by the agency that each adoption, amendment, or repeal is reasonably necessary to carry out the purpose for which it is proposed. Where the adoption or amendment of a regulation would mandate the use of specific technologies or equipment, a statement of the reasons why the agency believes these mandates or prescriptive standards are required.

(2) An identification of each technical, theoretical, and empirical study, report, or similar document, if any, upon which the agency relies in proposing the adoption, amendment, or repeal of a regulation.

(3) (A) A description of reasonable alternatives to the regulation and the agency's reasons for rejecting those alternatives. In the case of a regulation that would mandate the use of specific technologies or equipment or prescribe specific actions or procedures, the imposition of performance standards shall be considered as an alternative.

(B) A description of reasonable alternatives to the regulation that would lessen any adverse impact on small business and the agency' s reasons for rejecting those alternatives.

© Notwithstanding subparagraph (A) or (B), an agency is not required to artificially construct alternatives, describe unreasonable alternatives, or justify why it has not described alternatives.

(4) Facts, evidence, documents, testimony, or other evidence on which the agency relies to support an initial determination that the action will not have a significant adverse economic impact on business.

(5) A department, board, or commission within the Environmental Protection Agency, the Resources Agency, or the Office of the State Fire Marshal shall describe its efforts, in connection with a proposed rulemaking action, to avoid unnecessary duplication or conflicts with federal regulations contained in the Code of Federal Regulations addressing the same issues. These agencies may adopt regulations different from federal regulations contained in the Code of Federal Regulations addressing the same issues upon a finding of one or more of the following justifications:

(A) The differing state regulations are authorized by law.

(B) The cost of differing state regulations is justified by the benefit to human health, public safety, public welfare, or the environment.

© A state agency that adopts or amends a regulation mandated by federal law or regulations, the provisions of which are identical to a previously adopted or amended federal regulation, shall be deemed to have complied with subdivision (B) if a statement to the effect that a federally mandated regulation or amendment to a regulation is being proposed, together with a citation to where an explanation of the provisions of the regulation can be found, is included in the notice of proposed adoption or amendment prepared pursuant to Section 11346.5. However, the agency shall comply fully with this chapter with respect to any provisions in the regulation that the agency proposes to adopt or amend that are different from the corresponding provisions of the federal regulation.

11346.3. (a) State agencies proposing to adopt, amend, or repeal any administrative regulation shall assess the potential for adverse economic impact on California business enterprises and individuals, avoiding the imposition of unnecessary or unreasonable regulations or reporting, recordkeeping, or compliance requirements. For purposes of this subdivision, assessing the potential for adverse economic impact shall require agencies, when proposing to adopt, amend, or repeal a regulation, to adhere to the following requirements, to the extent that these requirements do not conflict with other state or federal laws:

(1) The proposed adoption, amendment, or repeal of a regulation shall be based on adequate information concerning the need for, and consequences of, proposed governmental action.

(2) The state agency, prior to submitting a proposal to adopt, amend, or repeal a regulation to the office, shall consider the proposal's impact on business, with consideration of industries affected including the ability of California businesses to compete with businesses in other states. For purposes of evaluating the impact on the ability of California businesses to compete with businesses in other states, an agency shall consider, but not be limited to, information supplied by interested parties. It is not the intent of this section to impose additional criteria on agencies, above that which exists in current law, in assessing adverse economic impact on California business enterprises, but only to assure that the assessment is made early in the process of initiation and development of a proposed adoption, amendment, or repeal of a regulation.

11346.5. (a) The notice of proposed adoption, amendment, or repeal of a regulation shall include the following:

(1) A statement of the time, place, and nature of proceedings for adoption, amendment, or repeal of the regulation.

(2) Reference to the authority under which the regulation is proposed and a reference to the particular code sections or other provisions of law that are being implemented, interpreted, or made specific.

(3) An informative digest drafted in plain English in a format similar to the Legislative Counsel's digest on legislative bills. The informative digest shall include the following:

(A) A concise and clear summary of existing laws and regulations, if any, related directly to the proposed action and of the effect of the proposed action.

(B) If the proposed action differs substantially from an existing comparable federal regulation or statute, a brief description of the significant differences and the full citation of the federal regulations or statutes.

© A policy statement overview explaining the broad objectives of the regulation and, if appropriate, the specific objectives. (4) Any other matters as are prescribed by statute applicable to the specific state agency or to any specific regulation or class of regulations.

(5) A determination as to whether the regulation imposes a mandate on local agencies or school districts and, if so, whether the mandate requires state reimbursement pursuant to Part 7 (commencing with Section 17500) of Division 4.

(6) An estimate, prepared in accordance with instructions adopted by the Department of Finance, of the cost or savings to any state agency, the cost to any local agency or school district that is required to be reimbursed under Part 7 (commencing with Section 17500) of Division 4, other nondiscretionary cost or savings imposed on local agencies, and the cost or savings in federal funding to the state. For purposes of this paragraph, "cost or savings" means additional costs or savings, both direct and indirect, that a public agency necessarily incurs in reasonable compliance with regulations.

(7) If a state agency, in proposing to adopt, amend, or repeal any administrative regulation, makes an initial determination that the action may have a significant, statewide adverse economic impact directly affecting business, including the ability of California businesses to compete with businesses in other states, it shall include the following information in the notice of proposed action: (A) Identification of the types of businesses that would be affected.

(B) A description of the projected reporting, recordkeeping, and other compliance requirements that would result from the proposed action.

© The following statement: "The (name of agency) has made an initial determination that the (adoption/amendment/repeal) of this regulation may have a significant, statewide adverse economic impact directly affecting business, including the ability of California businesses to compete with businesses in other states. The (name of agency) (has/has not) considered proposed alternatives that would lessen any adverse economic impact on business and invites you to submit proposals. Submissions may include the following considerations: (i) The establishment of differing compliance or reporting requirements or timetables that take into account the resources available to businesses. (ii) Consolidation or simplification of compliance and reporting requirements for businesses. (iii) The use of performance standards rather than prescriptive standards. (iv) Exemption or partial exemption from the regulatory requirements for businesses."

(8) If a state agency, in adopting, amending, or repealing any administrative regulation, makes an initial determination that the action will not have a significant, statewide adverse economic impact directly affecting business, including the ability of California businesses to compete with businesses in other states, it shall make a declaration to that effect in the notice of proposed action. In making this declaration, the agency shall provide in the record facts, evidence, documents, testimony, or other evidence upon which the agency relies to support its initial determination. An agency's initial determination and declaration that a proposed adoption, amendment, or repeal of a regulation may have or will not have a significant, adverse impact on businesses, including the ability of California businesses to compete with businesses in other states, shall not be grounds for the office to refuse to publish the notice of proposed action.

(9) A description of all cost impacts, known to the agency at the time the notice of proposed action is submitted to the office, that a representative private person or business would necessarily incur in reasonable compliance with the proposed action. If no cost impacts are known to the agency, it shall state the following: "The agency is not aware of any cost impacts that a representative private person or business would necessarily incur in reasonable compliance with the proposed action."

(10) A statement of the results of the assessment required by subdivision (B) of Section 11346.3.

(11) The finding prescribed by subdivision © of Section 11346.3, if required.

(12) A statement that the action would have a significant effect on housing costs, if a state agency, in adopting, amending, or repealing any administrative regulation, makes an initial determination that the action would have that effect. In addition, the agency officer designated in paragraph (14), shall make available to the public, upon request, the agency's evaluation, if any, of the effect of the proposed regulatory action on housing costs.

(13) A statement that the adopting agency must determine that no reasonable alternative considered by the agency or that has otherwise been identified and brought to the attention of the agency would be more effective in carrying out the purpose for which the action is proposed or would be as effective and less burdensome to affected private persons than the proposed action.

(14) The name and telephone number of the agency representative and designated backup contact person to whom inquiries concerning the proposed administrative action may be directed.

(15) The date by which comments submitted in writing must be received to present statements, arguments, or contentions in writing relating to the proposed action in order for them to be considered by the state agency before it adopts, amends, or repeals a regulation.

(16) Reference to the fact that the agency proposing the action has prepared a statement of the reasons for the proposed action, has available all the information upon which its proposal is based, and has available the express terms of the proposed action, pursuant to subdivision (B).

(17) A statement that if a public hearing is not scheduled, any interested person or his or her duly authorized representative may request, no later than 15 days prior to the close of the written comment period, a public hearing pursuant to Section 11346.8.

(18) A statement indicating that the full text of a regulation changed pursuant to Section 11346.8 will be available for at least 15 days prior to the date on which the agency adopts, amends, or repeals the resulting regulation.

(19) A statement explaining how to obtain a copy of the final statement of reasons once it has been prepared pursuant to subdivision (a) of Section 11346.9. (20) If the agency maintains an Internet Web site or other similar forum for the electronic publication or distribution of written material, a statement explaining how materials published or distributed through that forum can be accessed. (B) The agency representative designated in paragraph (14) of subdivision (a) shall make available to the public upon request the express terms of the proposed action. The representative shall also make available to the public upon request the location of public records, including reports, documentation, and other materials, related to the proposed action. If the representative receives an inquiry regarding the proposed action that the representative cannot answer, the representative shall refer the inquiry to another person in the agency for a prompt response. © This section shall not be construed in any manner that results in the invalidation of a regulation because of the alleged inadequacy of the notice content or the summary or cost estimates, or the alleged inadequacy or inaccuracy of the housing cost estimates, if there has been substantial compliance with those requirements.

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The firm doing this CEQA study & EIR

http://horizonh2o.com/mission.html

Kenneth Schwarz, Ph.D

http://www.scwrp.org/resumes/Schwarz.pdf

Michael Stevenson – Watershed Scientist. M.S. Yale University, School of Forestry and Environmental Studies (emphasis on Watershed Management and Restoration); B.A. University of California, Santa Cruz, Environmental Studies. Six years of experience.

Contribution: Senior Peer Review – Hydrology and Water Quality

Both use to work for Jones & Stokes.

http://www.climatechangefocusgroup.com/

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The Federal environmental impact standard on public domain lands, consisting of 45% of California. Is to prevent “unnecessary or undue degradation” of public lands by operations authorized by the mining laws. This long standing, and well thought out environmental impact standard is based on common sense, practicality, and indisputable physical facts.

No natural mineral resource deposit exists, in tidy packages, in orderly stacks, on a shipping platform, waiting to be found, and hauled away. They exist in nature, in whatever setting they exist in. All mineral deposits requiring mining, in order to extract the valuable mineral there.

Given that obvious irrefutable fact, some environmental degradation must take place, in order to mine a natural mineral resource. The cornerstone of all federal regulation governing those environmental impacts, caused by mining is carefully premised on that factual foundation. Otherwise, it would be impossible to mine any natural mineral resource.

The federal standard is not “NO” degradation. Rather, it is to prevent “unnecessary or undue degradation” in mining operations on federal lands. Plainly, if a “NO” environmental degradation standard existed, for agriculture, manufacturing, commerce, and power production. Modern civilization as we know it in America, or California could not exist.

If a “NO” environmental degradation standard is established here, for small scale suction dredge gold mining in California. A “precedent” is set, for all other uses of water, land, agriculture, manufacturing, travel and commerce statewide. Perhaps, if the legislature were to go without everything that mining fundamentally provides them with.

After a day of setting naked, cold, hungry, without shelter, or every other modern necessity, or convenience mined mineral resources make possible. The legislature might come to the full realization of how foolish, arbitrary & idiotic SB 670 actually is. What next, stop limestone, or aggregate mining in California, destroying the states domestic production of cement?

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______________________________

SB 670

The people of the State of California do enact as follows:

SECTION 1. Section 5653.1 is added to the Fish and Game Code, to read:

5653.1. (a) The issuance of permits to operate vacuum or suction dredge equipment is a project pursuant to the California Environmental Quality Act (Division 13 (commencing with Section 21000) of the Public Resources Code) and permits may only be issued, and vacuum or suction dredge mining may only occur as authorized by any existing permit, if the department has caused to be prepared, and certified the completion of, an environmental impact report for the project pursuant to the court order and consent judgment entered in the case of Karuk Tribe of California et al. v. California Department of Fish and Game et al., Alameda County Superior Court Case No. RG 05211597.

(B ) Notwithstanding Section 5653, the use of any vacuum or suction dredge equipment in any river, stream, or lake of this state is prohibited until the director certifies to the Secretary of State that all of the following have occurred…”

1. The puzzle there being, Karuk tribe v. CDFG court order only covers the Klamath, Salmon & Scott rivers.

2. The next puzzle is why SB 670 prohibits suction dredging statewide, when the court order it cites to be complied with only covers the Klamath, Salmon & Scott rivers.

As such, no statewide EIR is required by SB 670.

Consequently, CDFG has no statutory, or regulatory authorization, or authority to perform a statewide EIR.

________________________________

CEQA § 21080. Division application to discretionary projects; nonapplication; negative declarations; environmental impact report preparation

“(a) Except as otherwise provided in this division, this division shall apply to discretionary projects proposed to be carried out or approved by public agencies…”.

(B ) This division does not apply to any of the following activities:

(1) Ministerial projects proposed to be carried out or approved by public agencies.

CEQA only applies to “Discretionary” projects.

SB 670 provisions declare the issuance of suction dredge permits is a CEQA “Project”.

Consequently, removing any “discretion” CDFG has in the matter.

With all “discretion” removed, the project is made “Ministerial”.

That being the case, having no discretion to do otherwise.

CDFG has no authority to perform an EIR under CEQA, and “Must” approve the project permits.

This is a perfect example of mutually incompatible statutory directives.

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United States Department of the Interior

BUREAU OF LAND MANAGEMENT

California State Office

2800 Cottage Way, Suite W1834

Sacramento, CA 95825

www.ca.blm.gov

May 3, 2006

In Reply Refer To: 3809 (CA920) P

EMS TRANSMISSION: 5/3/06 Instruction Memorandum No. CA-2006-026 Expires: 09/30/2007

To: All Field Managers, and District Manager, CDD

From: State Director

Subject: Implementation of the Settlement Agreement re: Stapp v. U.S. Dept. of the Interior, et al., No. ED CV 02-1107 SGL (C.D. CA)

Program Area: Surface management of mineral operations conducted under the general mining laws.

Background: On October 16, 2002, Delores Stapp, a holder of a mining claim located on public land managed by the Bureau of Land Management (BLM), filed a pro se challenge to the surface management regulations at 43 CFR 3809 (Stapp v. U.S. Dept. Of the Interior, et al (No. ED CV 02-1107 SGL (C.D. CA)). These regulations were published on November 21, 2000 (65 FR 69998) and effective January 21, 2001, and later amended on October 30, 2001 (66 FR 54834).

Effective February 27, 2006, the United States settled the lawsuit filed by Ms. Stapp (Agreement attached). The terms of the agreement clarify certain issues regarding “casual use”, “use and occupation”, and other actions related to mining law operations on public lands managed by BLM. The Settlement Agreement also directs certain attention to Ms. Stapp’s activity, specifically, and other mining law operators in general.

Purpose: The direction in this memorandum is to inform all California field offices of the terms of the subject Settlement Agreement. All field offices are to comply with the applicable terms of the agreement when reviewing operations proposed on public lands under the regulations at 43 CFR 3809.

Policy/Action: The agreement provides for clarification of terms in the regulations at 43 CFR 3809. The following recites Part II. “Terms” of the agreement:

General Application

• Under 43 CFR 3809, the regulatory maximum for casual use is “negligible” disturbance, not “no” disturbanceGenerally, casual use:

o Includes the collection of mineral specimens; use of hand and battery operated tools and devices; hand panning, non-motorized sluicing and battery-operated dry washers.

o May include use of small portable suction dredges, motorized dry washers not greater than 10 HP, and motorized recirculating units not greater than 10 HP, provided the activity results in no greater than negligible disturbance;o May include occupancies limited to 14 days or less in a 90-day period;

o Excludes the use of mechanized earth-moving/drilling equipment, chemicals, explosives, and motorized vehicles in areas when designated as closed to “off-road vehicles”. BLM will notify applicable mining claimants of any new road closure proceeding in the California Desert District and will consider mineral resources in road closure decisions.

• Under 43 CFR § 3809.333, persons conducting notice-level operations, including operations involving occupancies of greater than 14 days in a 90-day period, may extend their notice for two years under the same terms and conditions of the original notice by notifying BLM in writing on or before the expiration of the notice. Upon review, BLM may require an operator to modify its notice, adjust the financial guarantee or submit a plan of operations as set forth in 43 CFR 3809.11.

Application Specific to Plaintiff (Delores Stapp)

For a mining related operation with no greater than negligible surface disturbance and is a notice level or higher solely because an occupancy is greater than 14 days in a 90-day period by the Plaintiff, the financial assurance will be the minimum estimated cost necessary to perform the reclamation as specified. If the reclamation cost estimate is minimal, BLM will require only a nominal financial assurance from the Plaintiff. In addition to surety bonds, acceptable financial assurance instruments include cash, certificates of deposit, savings accounts, irrevocable letters of credit, insurance and various forms of negotiable securities. When an operator requests that BLM release its financial assurance following completion of reclamation and closure activities, BLM will promptly process the request as expeditiously as practicable

BLM will complete in as timely a manner as possible their review and other actions necessary to process a mining notice that may be submitted by Plaintiff reflecting an operation involving an occupancy that would result in no greater than negligible disturbance.

Timeframe: This policy becomes effective immediately.

Budget Impact: None

Manual/Handbook Section Affected: None.

Coordination: None

Contact: For questions related to surface management policy, please contact Marc Springer in this office at (916) 978-4369. For questions related to the Settlement Agreement contact Rob Waiwood in the California Desert District Office at (951) 697-5306.

Signed by: Authenticated by: James Wesley Abbott Richard A. Erickson Associate State Director Records Management

Attachment – Settlement Agreement re: Stapp v. U.S. Dept. Of the Interior, et al, No. ED CV 02-1107 SGL (C.D. CA) (9 pp)

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323176055_o.jpg

323179008_o.jpg

323179022_o.jpg

323179030_o.jpg

THIS MOU IS STILL EFFECTIVE, ACTIVE & ALIVE :inocent:

I HOPE CDFG & HORIZON LOVE THIS KINK IN THEIR CEQA PARTY :yuk-yuk:

IT'S NOT THEIR WAY OR NO WAY...........ANYMORE :rasberry:

.............. :olddude:

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Re-posted direct from PLP's website.....

These are the Comments and constuctive Notice given the the Ca. Fish and Game at the Sacramento meeting on Nov. 17 2009

Public lands for the People inc.

501c-3 non profit org

7194 CONEJO DR.

San Bernardino Ca. 92404

909-889-3039

Mark Stopher Nov. 17, 2009

California Department of Fish and Game

601 Locust

Redding Ca. 96001

Constructive Notice and Comment

(On California Department of Fish and Game (DFG) Notice of Preparation (NOP) for Suction Dredge Mining and Rule Making Process)

Public Lands for the People Inc. (PLP) and I appreciate the opportunity to participate in the rule making process for suction dredge mining in the state of California.

The purpose of our comments is to inform the DFG that in the process of doing their Environmental Impact Study (EIR) to promulgate Suction Dredge Regulations for the State of California, DFG should seriously consider retaining an expert on Mining laws.

In the 1994 the DFG did not consider the ramifications of running afoul to the mining laws, the Constitutional protections, other applicable federal laws or the case law decisions on the rights of miners and mining claimants. If the DFG continues to ignore these laws in this present rule making process there will be serious ramifications in a court of law.

We notice that the California Department of Fish and Game (DFG) in several places refer to the suction dredge community as recreational. Where ever the DFG gets such language from will most likely create a great problem down the line for them. There is no such creature, either in state law or federal law which creates a recreational suction dredger, prospector or miner and can only serve to take a miner out from under the protection of the rights granted under the mining law.

Recreation is a privilege in most cases and mining is a property right, a grant of land under the federal mining laws of 1866 and 1872. (30 USC 22 – 54). For the DFG to treat miners, prospectors or mining claim owners, (Mineral Estate Grantees) with the same disrespect as given to the recreational activities will certainly exceed DFG’s regulatory authority.

Also it would appear that DFG believes they have discretion to regulate suction dredge mining to the point of prohibition. Case Law says that they can not prohibit prospecting or mining either temporarily or permanently.

In the Department of Fish and Game Notice of Preparation Document (DFG NOP) on page 21, last paragraph and I quote, “In other words, the issuance of individual suction dredge mining permits consistent with regulations adopted by the Department under Fish and game Code section 5653.9 is an important aspect of the discretionary project being analyzed in the SEIR that the Department proposes to carry out and approve for the purposes of CEQA.”

In the Department of Fish and Game Notice of Preparation Document (DFG of NOP) on page 25, part 7.5, Final SEIR and Proposed Regulations, and I quote, “The final SEIR, in turn inform the Department’s exercise of discretion as a lead agency under CEQA in deciding whether to approve a the Proposed Program as prescribed by the Fish and Game Code.”

The DFG does not have discretion under CEQA or NEPA or any other state or federal law to prohibit suction dredge mining, temporarily or permanently, mining is not discretionary.

Definition of Discretionary Blacks Law Dictionary 9th Edition

(of an act or Duty) “involving an exercise of judgment and choice, not an implementation of hard-and-fast rule.”

This language does not entertain the rights under the mining law but does offer an opportunity for the DFG to fall in an act of abuse of discretion.

Suction Dredge Mining nor any other form of modern day mining is discretionary and in the case of California’s CEQA suction dredge mining is a ministerial action and can not be classified as discretionary. (CEQ Guidelines 15260 – 15285)

Definition of Ministerial Blacks Law Dictionary 9th Edition

“Of or relating to an act that involves obedience to instructions or laws instead of discretion, judgment, or skill…”

Discretionary is a Violation of Public Resources Code

Section 21080-21098

21080. “ (a) Except as otherwise provided in this division, this

division shall apply to discretionary projects proposed to be carried

out or approved by public agencies,

State law under CEQA also is defined as to only apply to discretionary projects as quoted from section 21080 of the Public Resource code:

Discretionary is a violation of CALIFORNIA CODES

PUBLIC RESOURCES CODE

SECTION 21080-21098

21080. (a) Except as otherwise provided in this division, this

division shall apply to discretionary projects proposed to be carried

out or approved by public agencies…”

The Federal code states at 50 CFR § 402.03 (Applicability)

“Section 7 and the requirements of this Part apply to all actions in which there is discretionary Federal involvement or control.”

The U.S. Supreme Court in 2007 clarified the meaning of “discretionary agency action” in Home Builders v. Defenders of Wildlife 127 S.Ct. 2518 at 2534 where they stated:

“ Agency discretion presumes that an agency can exercise “judgment” in connection with a particular action. See Citizens to Preserve Overton Park, Inc. v. Volpe, 401 U.S. 402, 415-416, 91 S.Ct. 814, 28 L.Ed.2d 136 (1971); see also Random House Dictionary of the English Language 411 (unabridged ed.1967) (“discretion” defined as “the power or right to decide or act according to one's own judgment; freedom of judgment or choice”). As the mandatory language of § 402(B) itself illustrates, not every action authorized, funded, or carried out by a federal agency is a product of that agency's exercise of discretion.

This history of the regulation also supports the reading to which we defer today. As the dissent itself points out, the proposed version of § 402.03 initially stated that “Section 7 and the requirements of this Part apply to all actions in which there is Federal involvement or control,”48 Fed.Reg. 29999 (1983) (emphasis added); the Secretary of the Interior modified this language to provide (as adopted in the Final Rule now at issue) that the statutory requirements apply to “all actions in which there is discretionary Federal involvement or control,”51 Fed.Reg. 19958 (1986) (emphasis added). The dissent's reading would rob the word “discretionary” of any effect, and substitute the earlier, proposed version of the regulation for the text that was actually adopted.

In short, we read § 402.03 to mean what it says: that § 7(a)(2)'s no-jeopardy duty covers only discretionary agency actions and does not attach to actions (like the NPDES permitting transfer authorization) that an agency is required by statute to undertake once certain specified triggering events have occurred. This reading not only is reasonable, inasmuch as it gives effect to the ESA's provision, but also comports with the canon against implied repeals because it stays § 7(a)(2)'s mandate where it would effectively override otherwise mandatory statutory duties.”

A miner operating under the Mining Law statute has a non-discretionary agency “advisory” relationship. A miner cannot be legally tortured into a CEQA, NEPA or ESA scenario. The law also, as the Supreme Court ruled, “stays” the application of the ESA “where it would effectively override otherwise mandatory statutory duties” like (for the purposes of this discussion) the Mining Law.

Violation of National Environmental Policy Act (NEPA)

Under "C Programmatic Analysis and Tiering", non-discretionary activities such as

locatable minerals exploration, as well as pick and shovel work and suction dredging

where T&E species exist, could be facilitated under programmatic analyses”

In 1994 the California Department of Fish and Game completed their EIR on suction

dredging and determined that it was not deleterious to fish, in accordance with following the regulations as adopted. This should be sufficient until a new EIR is completed.

To illustrate this concept the Supreme Court has said:"A contract is a compact between two or more parties, and is either executory or executed. An executory contract is one in which a party binds himself to do, or not to do, a particular thing;...." "A contract executed is one in which the object [10 U.S. 87, 137] of contract is performed; and this, says Blackstone, differs in nothing from a grant...." "A contract executed, as well as one which is executory, contains

obligations binding on the parties. A grant, in its own nature, amounts to an extinguishment of the right of the grantor, and implies a contract not to reassert that right. A party is, therefore, always estopped by his

own grant." Fletcher v. Peck, 10 U.S. 87 (1810)

The Public Lands cannot be “free and open” to exploration if the historical means of use by prospectors and miners can be prohibited by the State of California. The State of California may have the power to reasonably regulate activities not incident to mining

upon the public lands, but those same regulations fail when they operate to prohibit the customary usage by legitimate prospectors and miners on valid mining claims or in pursuit of such a claim. These proposed statutory or regulatory amendments are prohibitive and not merely regulatory in fundamental character and, therefore, are unlawful as proposed. We call your attention to:

The DFG can not prohibit through regulation or using their discretion

Ventura County v. Gulf Oil Corporation, 601 F.2d 1090 (1979)

(2) Despite this extensive federal scheme reflecting concern for the local environment as well as development of the nations resources, Ventura demands a right of final approval. Ventura seeks to prohibit further activity by gulf until it secures and Open Space Use Permit which may maybe issued on whatever conditions Ventura determines appropriate, or which may never be issued at all. The federal Government has authorized a specific use of federal lands, and Ventura cannot prohibit that use, either temporarily or permanently, in an attempt to substitute its judgment for that of Congress.

Recreation is a privilege in most cases and mining is a property right, a grant of land under the federal mining laws of 1866 and 1872. (30 USC 22 – 54). For the DFG to treat miners, prospectors or mining claim owners, (Mineral Estate Grantees) with the same disrespect as given to the recreational activities will certainly exceed DFG’s regulatory authority. It would appear that DFG believes they have discretion to regulate suction dredge mining to the point of prohibition. Case Law says that they can not prohibit prospecting or mining either temporarily or permantly.

Federal laws are always preeminent: once Congress passes laws that occupy an area, no government at a lower tier, i.e., at the state or local level, may pass laws that conflict with the federal laws.

As a miner operating under the U.S. Mining law (30 U.S.C. 22-54) has a non-discretionary agency “advisory” relationship. A miner cannot be legally tortured into a CEQA, NEPA, CWA, or ESA scenario. The law also, as the Supreme Court ruled, “stays” the application of the ESA “where it would effectively override otherwise mandatory statutory duties” like (for the purposes of this argument) the mining law. The mining law (Congressional grant) does not by its very nature admit to a permissive system (lease system), otherwise the mining law would be rendered meaningless. The California Department of Fish and Game (DFG) does not authorize mining (the mining law does), the DFG does not fund mining, and the DFG does not carry out the mining, therefore mining under the U.S. Mining law is not by definition a “federal action” subject to the CEQA, NEPA or CWA due to this fact that federal and state involvement or control is non-discretionary in fundamental character. (See also Karuk v. Forest Service, Supra.)

In U.S. v. Weiss 642 F.2d at 296:

“Although authority exists for the promulgation of regulations, those regulations may, nevertheless, be struck down when they do not operate to accomplish the statutory purpose or where they encroach upon other statutory rights.”

Granite Rock v. US

“…County ordinance is preempted because it conflicts with federal law. Specifically, we address whether the ordinance conflicts with the Federal Mining Act because it stands as an obstacle to the accomplishment of the full purposes and objectives of Congress embodied in the Act. Granite Rock, 480 U.S. at 581, 107 S.Ct.”

Dakota Mining Assoc. v. Lawrence County 155 F3d 1005 (8th Cir. 1998

Agency actions can often amount to prohibitions that impermissibly encroach upon the right to the use and enjoyment of placer claims for mining purposes (see 30 U.S.C 26). To reinforce this point, in South Dakota Mining Assoc. v. Lawrence County 155 F3d 1005 (8th Cir. 1998), at 1011 the court stated: “…government cannot prohibit a lawful use of the sovereign's land that the superior sovereign itself permits and encourages. To do so offends both the Property Clause and the Supremacy Clause of the federal Constitution. The ordinance is prohibitory, not regulatory, in its fundamental character.” Emphasis added.

30 U.S.C. 612(B)

so long as the agency regulatory authority over the miner does not become prohibitive. If the miner can work out a reasonable agreement, i.e. contract generally through an “informational”, then all is well. If not, then the miner can complain to the surface management agency through written administrative complaint or the appeal process and assert that the agencies actions are unreasonable, material interfering, prohibitive, and why, pursuant to 30 U.S.C. 612(B) (see also U.S. v. Curtis-Nevada Mines 611 F.2d 1277 at 1285).

Because environmental laws only apply in this setting. Namely the National Environmental Policy Act (NEPA-federal), the Endangered Species

The Court stated in Karuk v. Forest Service 379 F.Supp.2d 1071 at 1094 (N.D. Cal. 2005):

“…mining operations take place pursuant to the General Mining Law and the Surface Resources Act, which confers a statutory right upon miners to enter certain public lands for the purpose of mining and prospecting. This distinction is significant, as it differentiates mining operations from "licenses, contracts, leases, easements, rights-of-way, permits, or grants-in-aid," which are permissive in nature.

In fact, although Plaintiff vigorously argues that any act requiring "discretion" invokes the ESA, it is well-established that not every agency action triggers the consultation requirement of Section 7(a)(2) of the ESA. As the Ninth Circuit has made clear:

Within the limits prescribed by the Constitution, Congress undoubtedly has the power to regulate all conduct capable of harming protected species. However, Congress chose to apply section 7(a)(2) to federal relationships with private entities only when the federal agency acts to authorize, fund, or carry out the relevant activity.

Sierra Club v. Babbitt, 65 F.3d 1502, 1508 (9th Cir.1995) (emphasis added).”

And at 1095 the court stated:

. Marbled Murrelet, 83 F.3d. at 1074. Indeed, as the Ninth Circuit stated in Marbled Murrelet: Protection of endangered species would not be enhanced by a rule which would require a federal agency to perform the burdensome procedural tasks mandated by section 7 [of the ESA] simply because it advised or consulted with a private party. Such a rule would be a disincentive for the agency to give such advice or consultation. Moreover, private parties who wanted advice on how to comply with the ESA would be loathe to contact the [agency] for fear *1103 of triggering burdensome bureaucratic procedures. As a result, desirable communication between private entities and federal agencies on how to comply with the ESA would be stifled, and protection of threatened and endangered species would suffer.

Id. at 1074-75.

State law under CEQA also is defined as to only apply to discretionary projects as quoted from section 21080 of the Public Resource code:

CALIFORNIA CODES

PUBLIC RESOURCES CODE

SECTION 21080-21098

21080. (a) Except as otherwise provided in this division, this division shall apply to discretionary projects proposed to be carried out or approved by public agencies…”

Conclusion and Property Rights

Conclusion: The suction dredge miners and prospectors are not to be regulated under the discretion of any agency but only the non-discretionary or ministerial regulatory process.

- Unpatented mining claims are "property" in the highest sense of such term, which may be bought, sold and conveyed and will pass by decent. (30 USC 26.94)

Notice is given

I hereby officially request DFG’s unlawful actions cease and desist immediately. Failure to do so could subject the Director to personal suit for damages and those individuals acting in concert. The Director may also be subject to prosecution by the Dept. of Justice for Violations of the Hobbs Act (18 U.S.C. 1951), which states in part:

“(a) Whoever in any way or degree obstructs, delays, or affects commerce or the movement of any article or commodity in commerce, by robbery or extortion or attempts or conspires so to do, or commits or threatens physical violence to any person or property in furtherance of a plan or purpose to do anything in violation of this section shall be fined under this title or imprisoned not more than twenty years, or both.

(B) As used in this section--

(1) The term “robbery” means the unlawful taking or obtaining of personal property from the person or in the presence of another, against his will, by means of actual or threatened force, or violence, or fear of injury, immediate or future, to his person or property, or property in his custody or possession, or the person or property of a relative or member of his family or of anyone in his company at the time of the taking or obtaining.

(2) The term “extortion” means the obtaining of property from another, with his consent, induced by wrongful use of actual or threatened force, violence, or fear, or under color of official right.” Emphasis added

Respectfully Submitted

Gerald Hobbs

President PLP

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