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old gold miner

SB 670 Ca dredge ban

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THIS IS DATED JUNE 2009

Impart it is Federally FUNDED & covers USFS/BLM lands.

When federally funded, they must include & deal with federal mining law.

They IGNORE federal mandates of the mining laws.

They IGNORE vested private property rights (including riparian & in-stream water rights) of all placer mining claim owners situated in the Klamath river basin drainage.

______________________________________

State Water Resources Control Board

http://epa.gov/region09/water/tmdl/klamath/Chapter6implementationPlan.pdf

_______________________________

6.5.3.3 Coordination with the Department of Fish and Game

The California Department of Fish and Game (CDFG) administers a permit for suction

dredging activities in the Klamath River basin. In May 2009, the State Senate passed a

bill (SB 670) requiring the CDFG to temporarily halt issuance of all suction dredge

mining permits. Senate Bill 670 prohibits the use of suction dredge mining equipment in

rivers and streams that provide critical habitat to spawning salmon and steelhead until the

CDFG updates its suction dredge rules so they comply with CEQA. The State Water

Board currently working cooperatively with the CDFG to formulate general statewide

regulations and/or guidelines for dredge operators. The Klamath River TMDL

implementation plan supports this process as the means to address the impacts of suction

dredging activities, and Regional Water Board staff recommends that CDFG incorporate

the prohibition on sediment discharges in and around known thermal refugia locations

into the revised permit. Regional Water Board staff will evaluate the revised permit and

will consider at that time whether any further measures are necessary to protect water

quality. If the permit is sufficient, the Regional Water Board may certify CDFG’s

program pursuant to the State NPS Policy.

6.5.4

________________________________

The TMDL Program is the primary program responsible for achieving clean water where

traditional controls on point sources have proven inadequate to do so. The program thus

is charged with creating plans that consider all sources and causes of impairment, and

allocating responsibility for corrective measures, regardless of sources or cause, that will

attain water quality standards. The Klamath River TMDL implementation plan

implements the load allocations and targets developed as part of the technical TMDL

analysis to meet water quality standards in the Klamath River in California. It identifies

the parties responsible for controlling pollutant discharges to meet the TMDL and

recommends implementation measures for adoption into the Regional Water Board Basin

Plan as the Klamath River TMDL Action Plan. The measures include regulatory actions

for the Regional Water Board to take to implement and enforce the TMDL, and measures

required of the responsible parties. In developing the implementation plan, the Regional

Water Board staff considered the nature of the discharges in the Klamath River basin as

well as existing efforts to protect and restore water quality in the basin. The plan sets

time schedules by which the responsible parties will implement their compliance

measures and also includes a monitoring plan to track progress towards compliance. The

Regional Water Board will adaptively manage TMDL implementation by periodically

reviewing monitoring data and discharger reports and make any necessary revisions to

the TMDL and/or implementation program.

_________________

Achieving compliance with the Klamath River TMDLs in both states will require a

coordinated approach that involves state and federal agencies as well as responsible

parties in California and Oregon. To this end, the Regional Water Board, Oregon

Department of Environmental Quality (ODEQ), and USEPA Regions 9 and 10 have

signed a Memorandum of Agreement (MOA) for implementing the Klamath River basin

TMDLs.

_________________

6.1.3 Nonpoint Source Land Use Activities and Controls

The threats to water quality from nonpoint source activities in the Klamath River basin

are mainly associated with timber harvest, roads, grazing, and irrigated agriculture on

private and federal lands. The implementation plan focuses on reducing nutrient loading

in the upper basin, controlling sediment discharges, and protecting riparian vegetation in

the tributaries downstream of Iron Gate Dam in accordance with the technical TMDL

allocations. The implementation plan proposes a prohibition on the discharge of excess

sediment to address all sediment sources in the Klamath River basin not currently

regulated through an existing permit or conditional waiver. The implementation plan

also proposes a prohibition on the discharge of waste in and around known thermal

refugia locations in the Klamath River in California to protect their function in mitigating

adverse water quality conditions.

With the exception of existing waste discharge requirements (WDRs) and waivers for

timber harvest and TMDL waivers adopted as part of the Scott and Shasta River TMDLs,

the Regional Water Board has not adopted regulatory mechanisms that make the Klamath

River TMDL requirements enforceable. To address this gap in regulation, the

implementation plan recommends development of several new conditional waivers

and/or WDRs for controlling discharges from land use activities that contribute to the

water quality impairments. To ensure the TMDL is enforceable until those permits are

developed, it is recommended that the Regional Water Board adopt a conditional waiver

for all parties that comply with the TMDL implementation plan, similar to the waivers

adopted as part of the Scott and Shasta TMDL implementation plans.

_______________________

6.1.4 Regulatory Requirements of TMDL Implementation Plans

The TMDL establishes the allowable loadings or other quantifiable parameters for a

waterbody that is the total permissible pollutant load that will achieve water quality

standards. This “loading capacity” provides a reference for calculating the amount of

pollutant reduction needed to bring a waterbody into compliance with water quality

standards or designated uses. The TMDL identifies and assigns allocations to all sources

of pollution, including waste load allocations (WLA) for point sources and load

allocations (LA) to nonpoint sources (40 CFR § 130 .2(i)). A wasteload allocation

(WLA) is defined as “[t]he portion of a receiving water’s loading capacity that is

allocated to one of its existing or future point sources of pollution”. WLAs constitute a

type of water quality-based effluent limitation (40 CFR § 130.2(h)). A load allocation is

defined as “[t]he portion of a receiving water’s loading capacity that is attributed either to

one of its existing or future nonpoint sources of pollution or to natural background

sources” (40 CFR § 130.2(g)). Wherever possible, natural and nonpoint source loads

should be distinguished. The rationale for the allocations and targets is provided in detail

in Chapters 2 through 5 of the TMDL Staff Report.

___________________________

In California, discharges of waste that are not NPDES “discharges of pollutants” require

the issuance of waste discharge requirements (WDRs) unless otherwise waived.

Discharges of waste that are not subject to NPDES permits typically include runoff from

nonpoint sources such as agricultural activities and waste discharges to land or to

groundwater. For non-NPDES discharges, the Water Code generally does not dictate

specific effluent limits. WDRs prescribe requirements, such as limitations on

temperature, toxicity, or pollutant levels, as to the nature of any discharge (Wat. Code, §

13260, subd. (a)). WDRs may also specify conditions where no discharge will be

permitted, (Id., § 13241), and may also include monitoring and reporting requirements

(See id. § 13267, Cal. Code Regs., tit. 23, § 2230). WDRs implement the Basin Plan,

taking into consideration the beneficial uses to be protected, and water quality objectives

reasonably required for that purpose, other waste discharges, and the need to prevent

nuisance. (Wat. Code, § 13263, subd. (a).). The general regulatory scheme provides

flexibility to dischargers in choosing the methods they will implement to meet the

requirements of the Porter-Cologne Act. (See, e.g , Wat. Code, § 13360 [preventing the water boards from specifying the manner of compliance].) If Best Management

Practices (BMPs) or other nonpoint source pollution controls make more stringent load

allocations practicable, then WLAs for NPDES dischargers can be made less stringent, or

vice versa. Thus, the TMDL process provides for nonpoint and point source control

tradeoffs (40 C FR § 130.2(i)).

______________________________

Key components for implementing the watershed-wide allocations and targets include: 1)

a watershed-wide prohibition on the discharge of excess sediment, and 2) measures to

protect thermal refugia in the Klamath River basin, including a prohibition of discharge

in and around known thermal refugia in the Klamath River basin in California. The

presentation of the watershed-wide implementation actions in Section 6.5 begins with a

description of these prohibitions, followed by discussion of the following land use

activities:

Road construction and maintenance;

Grazing;

Irrigated agriculture; and

Timber harvest.

Implementation actions associated with all land use activities of federally managed lands

are presented in Section 6.6. The Klamath River water quality improvement accounting

and tracking program (KlamTrack) is described in Section 6.7.

______________________________

6.2.3.3 Memorandum of Agreement to Coordinate State and Federal Agency TMDL

Implementation Actions in the Klamath River Basin

Klamath TMDL implementation will be coordinated with the ODEQ and the USEPA.

The Regional Water Board, ODEQ, and EPA Regions 9 and 10 have developed a

Memorandum of Agreement (MOA) that establishes a framework for joint

implementation of the Klamath River and Lost River TMDLs. The MOA includes

commitments such as:

Work to develop and implement a joint adaptive management program, including

joint time frames for reviewing progress and considering adjustments to TMDLs;

Work with the Klamath Basin Water Quality Monitoring Coordination Group and

other appropriate entities to develop and implement basinwide monitoring

programs designed to track progress, fill in data gaps, and provide a feedback

loop for management actions on both sides of the common state border;

Work jointly with common implementation parties (e.g., USBR, U.S. Forest

Service, USFWS, BLM, PacifiCorp, and the Klamath Water Users Association

(KWUA)) to develop effective implementation plans and achieve water quality

standards;

Explore centralized treatment options such as treatment wetlands, algae

harvesting, and package wastewater treatment systems to reduce nutrient loads to

the Klamath River and encourage implementation of these options where feasible;

and

Work to develop and implement a basinwide water quality accounting and

tracking program that would establish a framework to track water quality

improvements, facilitate planning and coordinated TMDL implementation, and

enable appropriate water quality offsets or trades.

______________________________________

Map of Klamath Hydroelectric Project Facilities. Link River Dam is not part of

KHP.

The technical TMDL analysis found that the KHP contributes to the impairment of the

Klamath River by:

Altering the nutrient dynamics of the river, and contributing to biostimulatory

conditions in the summer/fall growing season;

Creating physical conditions that promote nuisance blooms of suspended algae,

including toxin-forming blue-green algae species;

Creating low dissolved oxygen and high temperature conditions within the

reservoirs and at the tailraces; and

Altering the temperature regime in the Klamath River downstream.

_______________________________________

6.4 Implementation of Allocations and Targets - Tributaries and Coordination with

Existing Klamath River Tributary TMDLs

The tributaries to the Klamath River include five major tributaries and numerous minor

tributaries. The major tributaries are the Trinity, Salmon, Scott, Shasta and Lost Rivers.

All the major tributaries, except the Lost River, join the Klamath River in California and

are also wholly contained within California. The Lost River traverses the Oregon/

California border three times and ultimately joins the Klamath River in Oregon via the

Klamath Straits Drain. The major tributaries each have had technical TMDLs completed

that are specific to the tributary basin. The Regional Water Board has adopted TMDL

implementation plans for the Shasta, Scott, and Salmon River basins. The Trinity, South

Fork Trinity, and Lost River basins have had TMDLs promulgated by the USEPA

without associated implementation plans. Table 6.3 provides a summary of completed

TMDLs and adopted implementation plans in the major tributaries.

______________________________

6.4.6 Salmon River

6.4.6.1 Responsible Party

USFS

6.4.6.2 Implementation

The USFS manages 97% of the land in the Salmon River basin, and the Regional Water

Board passed a resolution in 2005 to develop an MOU with the USFS that would

implement the Salmon River TMDL. The MOU is scheduled for signature by July 2009;before the anticipated adoption of the Klamath TMDLs. As discussed in Section 6.6

(Implementation on Federally Managed Lands) Regional Water Board staff are in the

process of developing WDRs or a conditional waiver of WDRs to address all USFS

discharges on federally managed lands in the Region, including the Salmon River basin.

This waiver would incorporate the implementation measures agreed upon in the MOU

and would require compliance with the Klamath TMDL allocations and targets.

________________________________

Ultimately it is the Regional Water Board’s goal to combine as many discharge

requirements for various land use activities as comprehensively as possible into one

permitting structure. Already some parties have requested that the Regional Water Board

adopt ownership-wide WDRs for timber harvest companies operating within a large

ownership within the Klamath River basin (i.e., Green Diamond). Ownership-wide

WDRs have the advantage of being developed specifically for the lands within the

ownership, and covering all activities within that area. Regional Water Board staff may

work with companies to develop terms and conditions in the WDRs that meet TMDL

requirements. Ownership-wide WDRs can also be coordinated with the landowner’s

other management plans and policies, such as Habitat Conservation Plans (HCPs) and

Natural Community Conservation Plans (NCCPs).

_______________________________

Regional Water Board staff recommend a default buffer where no site-specific

information is available regarding the spatial extent of the refugia. Where site-specific

information is available, an extended buffer is recommended. Regional Water Board

staff referenced a thermal infrared study of the Klamath River basin conducted in August

2003 to identify creeks where a more extensive buffer is appropriate (Watershed Sciences

2004). The study showed the spatial dimensions and water temperatures of cold-water

refugia in the mainstem Klamath River. Staff also considered information submitted in

response to the April 2009 solicitation.

The buffer length that extends downstream of the tributary confluence is sized to protect

cold water plumes that form in the Klamath River where tributaries enter the mainstem

river. Most thermal refugia formed by cold water plumes are located within 300 feet of

the tributary confluence. Adding a margin of safety to this distance, staff recommend an

instream buffer of 500 feet from the tributary confluence in the downstream direction.

The responses Regional Water Board staff received from the April 2009 solicitation

identified a number of refugia locations where a buffer of 500 feet would not be

sufficient to protect the refugia from impacts of instream activities such as suction

dredging. For these refugia, staff are recommending a 1500 foot buffer. The tributaries

where a 1500 foot buffer is recommended include: Aubrey, Beaver, Clear, Dillon, Elk

Creek, Grider, Horse, Indian, Rock, Swillup, Thompson, and Ukonom (See Appendix 8).

To protect the refugia from activities upstream of the tributary confluence, the buffer

needs to be large enough so that instream activities such as suction dredging have a

negligible impact on the function of the refugia downstream. Suction dredging can create

plumes of sediment that usually settle out downstream within 300 ft. Adding a margin of

safety to this distance, Regional Water Board staff recommend a buffer area of 500 feetwhere discharges from suction dredging would be prohibited in the Klamath River

upstream of tributary confluences where known refugia exist.

The portion of the tributary that is just upstream of the tributary mouth can function

either as a water supply for the cold water plume in the mainstem, or it can function as a

thermal refuge itself. The functions provided by the tributary depend partially on

whether fish have physical access to that tributary. If the tributary itself is the refugia, the

buffer should extend at least as far as the thermal refuge area within the tributary. To

protect the tributaries that provide cold water refugia, staff recommend a prohibition on

discharges from suction dredging activities within the lower 500 feet of the tributary. As

with the buffer extent in the downstream direction in the Klamath River, the fisheries

biologists that responded to the April 2009 solicitation identified a number of tributaries

known to provide refugia for fish. To protect these tributaries from the potential impacts

of instream activities such as suction dredging, it is recommended that the buffer be

extended to 3000 feet within the tributary upstream of its confluence with the mainstem

river. The following is a list of tributary creeks that Regional Water Board staff

recommend be provided this added protection: Aubrey, Beaver, Clear, Dillon, Elk Creek,

Empire, Fort Goff, Grider, Horse, Indian, King, Little Horse, Little Humbug, Mill,

Nantucket, O’Neil, Portuguese, Reynolds, Rock, Sandy Bar, Seiad, Stanshaw, Swillup,

Thompson, Ti and Titus (See Appendix 8).

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There are three grounds for preemption of state law:

(a) express preemption, when federal law explicitly provides for preemption of state law, Shaw v. Delta Airlines, Inc., 463 US 85, 95-100, 103 S Ct 2890, 77 L Ed2d 490 (1983);

(B ) field preemption, when the extent of federal regulation is so pervasive as to make reasonable the inference that no room is left for states to supplement the federal law, Florida Lime & Avocado Growers, Inc., v. Paul, 373 US 132, 142-143, 83 S Ct 1210, 10 L Ed2d 248 (1963); and

© conflict preemption, when compliance with both federal and state law is an impossibility or when state law stands as an obstacle to accomplishment of the purposes of the federal law. Kennedy v. Collagen Corp., 67 F3d 1453 (9th Cir. 1995); Derenco Inc. v. Benj. Franklin Federal Sav. and Loan Ass'n, 281 Or 533, 577 P2d 477, cert den, 439 US 1051, 99 S Ct 733, 58 L Ed2d 712 (1978).

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I would suggest at least a few of you cut/paste this into your word processor program, & fire it off to DFG.

The more the better. It would only take you a few minutes & the cost of a postage stamp.

Or............ EMAIL IT TO....... mstopher@dfg.ca.gov

Many thanks, OGM

___________________________________

Mark Stopher

California DF&G

601 Locust

Redding Ca. 96001

Nov. ____, 2009

California Department of Fish and Game

Suction Dredge Mining and Rule Making Process

ACTUAL & CONSTRUCTIVE NOTICE OF MATERIAL FACTS

Dear Mr. Stopher,

This is to give you “Actual“ and “Constructive Notice” of the existence of approximately twenty four thousand (24,000) unpatented mining claims, as well as near four times that number of “patented” (fee simple) mining claims situated throughout California. All held, maintained or patented under provisions of General Mining Law (30 U.S.C. §§ 21 et seq.).

SB 670 irrationally ignores these material facts, as though they do not exist. But, DGF as the “Lead Agency” in this CEQA process cannot. As numerous CEQA provisions mandate these material facts, ramifications, and legal consequences of their existence, as well as their constitutional, and statutory protections must be included throughout this CEQA process.

The presence of federal mining claims situated statewide throughout California, and the constitutionally protected private property rights associated with them. As well as the Congressional policy, law and regulation to encourage, foster and provide for mining on applicable federal public domain lands nation wide, severely constrain the DFG, and CEQA regulatory jurisdiction, and actions here.

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It's just me I’m sure, but I want to relate this. I'm going to preface my thoughts by saying I fully - and without reservation, stand behind the rights of California gold claim owners and dredging permit holders to mine for gold without the interference of the state or federal government. They have been shafted.

Reading this thread however, I keep getting Billy Joel in my head, and he just won’t go away..

..I once believed in causes too, I had my pointless point of view,

Life went on no matter who was wrong or right, ohhhhh

And there's always a place for the angry young man,

With his fist in the air and his head in the sand.

And he's never been able to learn from mistakes,

He can't understand why his heart always breaks.

His honor is pure and his courage as well,

He's fair and he's true and he's boring as hell!

And he'll go to the grave as an angry old man...

Maybe, possibly, perhaps, we need to refocus our collective energies and monies with a strong education and awareness program that is coupled with legal and legislative fights. Rather than continue to urinate into the wind, I think we need to channel our bitter disappointment and anger into something positive that will help us, as free American gold miners, garner more public support. - Terry

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Sorry Terry,I just cannot let this one go,....... If you think all the above info and work is nothing more than pissing in the wind, then you are certainly the one with his head in the sand as in your quote.

Bye the way, have you ever heard of Dredge Earth First or Resources Coalition ? DEF Sarted very strong with the goal to Educate and bring new people into this kind of mining..... it faded away except in Washington and a bit in Colorado. However Resource Coalition has continued in the tradition of DEF,,,,,, Even if DEF came alive again in CA it would do no good.

Right now unless we support taking down SB-670 all that touchy feely crap of getting together and educating will do about zero good.

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GENERAL COMMENT # 10

Mining claims situated over California waterways own “riparian” water use rights

In 1870, Congress extended priority water rights "to all public lands affected by this act; and all patents granted, or pre-emption or homesteads allowed, shall be subject to any vested and accrued water rights, or rights to ditches and reservoirs used in connection with such water rights, as may have been acquired under or recognized by" the 1866 act (See; Act of July 9, 1870, ch. 235, ' 17, 16 Stat. 218).

RIPARIAN RIGHTS: No California statute defines riparian rights, but a modification of the common law doctrine of riparian rights has been established in this State by decisions of the courts and confirmed by the provisions of section 3, Article XIV of the California Constitution (see California Water Code sections 100, 101). Lands within the watershed of a natural watercourse, which are traversed thereby or border thereon, with the exceptions and limitations hereinafter, indicated, may be riparian. Each owner thereof may have a right, which is correlative with the right of each other riparian owner to share in the reasonable beneficial use of the natural flow of water, which passes his land.

No permit is required for such use. The State Water Resources Control Board's (SWRCB) policy is to consider natural flow as not including return flows derived from use of ground water, water seasonally stored and later released, or water diverted from another watershed. In administering the California Water Code, the SWRCB is governed by the following considerations relative to the doctrine of riparian rights as applied to this State:

The riparian right exists by reason of ownership of land abutting upon a stream or body of water and affords no basis of right to use water upon nonriparian land ( See; Rancho Santa Marqarita v. Vail, 11 Cal. 2d 501, 81 P. 2d 533)

The riparian owner is subject to the doctrine of reasonable use, which limits all rights to the use of water to, that quantity reasonably required for beneficial use and prohibits waste or unreasonable use or unreasonable methods of use or diversion. (Sec. 3, Art. XIV, Const. of Cal.; Peabody v. City of Vallejo, 2 Cal. 2d 351, 40 Pac. 2d 486; Tulare Irr. Dist. et al v. Lindsay Strathmore Irr. Dist., 3 Cal. 2d 489, 45 Pac. 2d 972; Rancho Santa Marqarita v. Vail, 11 Cal. 2d 501, 81 P. 2d 533)

Riparian rights entitle the landowner to use a share of the water flowing past his or her property. While riparian rights require no permits or licenses, they apply only to the water that would naturally flow in the stream and they do not allow the user to divert water for storage or use it on land outside its watershed. Riparian rights remain with the property when it changes hands

It is the established doctrine of this court that rights of miners ... and the rights of persons who had constructed canals and ditches to be used in mining operations and for purposes of agricultural irrigation, in the region where such artificial use of the water was an absolute necessity, are rights which the government had, by its conduct, recognized and encouraged and was bound to protect, before the passage of the act of 1866. We are of the opinion that [section 9] of the act ... was rather a voluntary recognition of a pre-existing right of possession, constituting a valid claim to its continued use, than the establishment of a new one (See; Broder, at 276. (Broder v. Natoma Water & Mining] Co., [101 U.S. 274 (1879).

The right to use water is a property right and may be protected against infringement in the same manner as any other property right; i.e., by appropriate court action.

Therefore, all mining claims situated over California waterways grant the owner have right to “appropriate”, and put that water there, to “beneficial use“. Neither DFG, nor the State Water Resource Control Board have the regulatory authority to deny that use.

The intake, and discharge from suction dredges consists totally of stream water and bed substrate material. In other words, suction dredging adds nothing that isn’t already there, to a waterway. The only thing small scale suction dredge removes by design function are small amounts of valuable heavy metals trapped in the floating sluice box recovery system. In fact, suction dredging also removes lead sinkers, bullets, mercury, and metal fishing paraphernalia. All of which are certainly deleterious to water quality.

Small scale suction dredge gold mining does not discharge any deleterious chemical substance (e.g., pesticides, insecticides, petroleum products, etc.), or deleterious organic nutrient loading substances (e.g., phosphates, nitrates, urine, fecal matter, etc.) into California waterways.

Suction dredging does cause a mild fleeting increase in turbidity, for a short distance downstream from the site. But, even cumulatively, a mild fleeting, short distance increase in turbidity only, is not significantly deleterious to local, regional, or overall statewide water quality in California. In other words, suction dredging adds no “pollutants”. To set an environmental baseline consider, the combined number of swimmers, rafters, non-motorized, and motorized boating create far more turbidly than small scale suction dredging statewide.

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GENERAL COMMENT # 1

DFG has no legal mandate or statutory authority to perform a statewide CEQA study

SB 670 statewide suction dredge prohibition is in effect until;

(1) The department has completed the environmental review of its existing suction dredge mining regulations, as ordered by the court 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.

That court order in pertinent part reads; “THEREFORE, the Department is hereby ORDERED to conduct a further environmental review pursuant to CEQA of it’s 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.”.

The court order SB 670 relies on specifically covers only the three distinct watersheds, of the Klamath, Scott, and Salmon Rivers.

As such, DFG has no legislative mandate, nor statutory, or regulatory authority, to perform a statewide CEQA study of it’s suction dredge mining regulations. Therefore, I “Protest” DFG illegal actions in implementing, and performing a statewide CEQA study of it’s suction dredge mining regulations. And, as a “taxpayer” in the state of California, I demand DFG stop these illegal, wasteful actions. Otherwise, I have no recourse but to bring an appropriate action in law, to have it stopped.

GENERAL COMMENT #2

Enforces an unconstitutional “taking” of private property, without first paying compensation.

Almost all small scale suction dredge gold mining statewide in California occurs on valid unpatented, and patented (fee simple) mining claims spread statewide on federal public domain. Near forty five percent (45%) of California is federally owned public domain lands. Primarily managed by the U.S. forest Service (USFS), and Bureau of Land Management (BLM). Federal public domain lands, and all unpatented mining claims on it, are under express federal statutory jurisdiction of the U.S. Forest Service (USFS), or Bureau of Land Management (BLM).

Thus, express federal policy, jurisdiction, dominant governing law, land planning, mining law, and regulation are manifestly applicable to all small scale suction dredge gold mining on federal public domain lands in California. DGF as a CEQA “lead agency“, if acting in “good faith” cannot arbitrarily ignore, or omit that paramount federal presence, physical circumstance, or legal fact. Unless, SB 670’s intent is to foolishly cause a direct collision between dominant federal law, and subservient state law?

“Congress shall have Power to dispose of and make all needful Rules and Regulations respecting the Territory or other Property belonging to the United States." (See, US Const, Art IV, § 3, cl. 2 (the "Property Clause"). This provision, combined with the Supremacy Clause of the United States Constitution (Art 6, cl 2), gives the federal government extremely broad authority to preempt the application of state laws to federal property when those state laws conflict with a federal mandate.

The General Mining Law (30 U.S.C. § 21 et seq.), in fact owes its origin to the discovery of gold in California, in 1848. The bulk of it’s statutory construction resulted from local miners rules originating in California during the gold rush era. 30 U.S.C. § 21 et seq., is a direct federal mandate to all western states where federal mining claims may be initiated, worked, and held. California accepted that federal mandate, upon admission as state by legislative implementation of what is now Public Resource Code § 3900 et seq. Which, with very minor differences (not in conflict with federal law) mirrors the discovery, posting, recording, and annual work requirements for the maintenance of title of all mining claims existing in California.

The Supremacy clause of the U.S. Constitution (Art. VI, paragraph 2) mandates federal law “preempts” state law, where direct conflicts arise. No matter how meritorious the intent of CEQA is. It simply cannot preempt overriding federal law. Framers of SB 670, and CEQA obviously never contemplated direct collision, or preemption by dominant federal law. The winner in direct collision of state, and federal law is overwhelmingly obvious. Federal law is supreme.

If Congress has not entirely displaced state regulation over the matter in question, state law is still preempted to the extent it actually conflicts with federal law, that is, when it is impossible to comply with both state and federal law, or where the state law stands as an obstacle to the accomplishment of the full purposes and objectives of Congress, (See: California Coastal Comm’n v. Granite Rock Co., 480 U.S. 572, 581 (1987).

“Any state legislation which frustrates the full effectiveness of federal law is rendered invalid by the Supremacy Clause" regardless of the underlying purpose of its enactors.” (See; Perez v. Campbell, 402 U.S. 637, 651-52, 91 S.Ct. 1704, 29 L.Ed.2d 233 (1971).

A conflict exists if a party cannot comply with both state law and federal law. In addition, even in the absence of a direct conflict between state and federal law, a conflict exists if the state law is an obstacle to the accomplishment and execution of the full purposes and objectives of Congress. Crosby v. Nat’l Foreign Trade Council, 530 U.S. 363, 372-73 (2000).

It has long been established that "a state statute is void to the extent that it actually conflicts with a valid federal statute" and that a conflict will be found either where compliance with both federal and state law is impossible or where the state law stands as an obstacle to the accomplishment and execution of the full purposes and objectives of Congress. (See; Edgar v. Mite Corp., 457 U.S. 624, 631 (1982), et al.).

As long as the Federal government retains title, the federal interest in providing free access to its own land in order to promote mining is sufficient to preempt any state law that fundamentally bans such use. Thus under standard preemption analysis any state legislation, or regulation that conflicts with this overriding federal purpose, must fail.

To anyone knowledgeable, it is utterly clear that, "State and local regulations which render a mine commercially impracticable cannot be enforced". (See; California Coastal Commission et al., v. Granite Rock Co., 480 U.S. 572, 592, 107 S.Ct.1419, 1425(1987).

South Dakota Mining Association Inc v. Lawrence County, 155 F.3d 1005 sets the precedent here, and reads as follows. “The ordinance's de facto ban on mining on federal land acts as a clear obstacle to the accomplishment of the Congressional purposes and objectives embodied in the Mining Act. Congress has encouraged exploration and mining of valuable mineral deposits located on federal land and has granted certain rights to those who discover such minerals. Federal law also encourages the economical extraction and use of these minerals.

The Lawrence County ordinance completely frustrates the accomplishment of these federally encouraged activities. A local 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. The district court correctly ruled that the ordinance was preempted. Accordingly, we affirm the judgment of the district court.”

The California Statehood Admission Act (Sec. 3) expressly provides; “…said State of California is admitted into the Union upon the express condition that the people of said State, through their legislature or otherwise, shall never interfere with the primary disposal of the public lands within its limits, and shall pass no law and do no act whereby the title of the United States to, and right to dispose of, the same shall be impaired or questioned…”.

Indisputably, the state of California, it’s legislature, and all state regulatory agencies are expressly barred from impairing, or even questioning federal mining claim owners vested right to mine, and their private property rights held under federal law. Certainly, the state can “reasonably” “regulate” small scale suction dredge gold mining. But cannot make that regulation so onerous as to arbitrarily prohibit mining, even temporarily, without incurring monumental financial liability.

The U.S. Supreme Court has unwaveringly held that valid mining claims are a form of “private & real property” In ordinary English, a "claim" is merely a demand for something, or an assertion of a right where the right has not been established. The phrase "mining claim" therefore probably connotes to most laymen an unsupported assertion or demand from which no legal rights can be inferred. But that is emphatically not so.

“In law, the word "claim" in connection with the phrase "mining claim" represents a federally recognized right in real property. The Supreme Court has established that a mining "claim" is not a claim in the ordinary sense of the word--a mere assertion of a right--but rather is a property interest, which is itself real property in every sense, and not merely an assertion of a right to property.” (See; Benson Mining & Smelting Co. v. Alta Mining & Smelting Co., 145 U.S.428 (1892)

Valid placer mining claims situated over California waterways grant the owners “vested” riparian water rights. The riparian owner is subject to the doctrine of reasonable use, which limits all rights to the use of water to, that quantity reasonably required for beneficial use and prohibits waste or unreasonable use or unreasonable methods of use or diversion. (See; Sec. 3, Art. XIV, Const. of Cal.; Peabody v. City of Vallejo, 2 Cal. 2d 351, 40 Pac. 2d 486; Tulare Irr. Dist. et al v. Lindsay Strathmore Irr. Dist., 3 Cal. 2d 489, 45 Pac. 2d 972; Rancho Santa Marqarita v. Vail, 11 Cal. 2d 501, 81 P. 2d 533).

Vested rights are fully protected from “taking” by the government under the fifth amendment to the Constitution. See Solicitor’s Opinion M-36910 (Supp.), 88 Interior Dec. 909, 912 (Oct 5, 1981); Wyoming v. United States, 255 U.S. 489, 501-02 (1921); Appeal of Eklutna, 83 Interior Dec. 619 (Dec. 10, 1976).

Section 104(B ) of the California Revenue and Taxation Code defines real property in part as "All mines, minerals, and quarries in the land, and all rights and privileges appertaining thereto." The term “land” is defined in Property Tax Rule 121 in relevant part as “the possession of, claim to, ownership of, or right to possession of land; mines, quarries, and unextracted mineral products. All real property not exempt or immune from taxation is subject to property tax.

The terms "mineral rights" and "mining rights" as described in Section 607.5 include the right to enter in or upon the land for the exploration, development, and production of minerals. The taxability of unpatented mining claims was established more than a century ago by the California Supreme Court, in the case of the State of California v. Moore 12 Cal. 56 (1859), which stated in part: "The interest of the occupant of a mining claim is property, and, under the Constitution, it is in the power of the Legislature to tax such property."

This private property right entitles the owner to "the right to extract all minerals from the claim without paying royalties to the United States." (See; Swanson v. Babbitt, 3 F.3d 1348, 1350 (9th Cir. 1990). As such, the owners vested “right” to mine, as well as the mining claim, being “real property” itself is fully protected from uncompensated “taking” by provisions of the U.S. Constitution (Amend. 5). No one can rationally refute, ownership of a mining claim, containing a valuable mineral deposit, does not include the right to mine it. As one is absolutely premised upon the other. Otherwise, all private property protections provided by the U.S Constitution would be meaningless.

The California Constitution. (Art. I, § 19 (a), provides, “… Private property may be taken or damaged for a public use and only when just compensation, ascertained by a jury unless waived, has first been paid to, or into court for, the owner…”. That also, would be meaningless. United States Court of Appeals, Ninth Circuit (1980). “…prospecting, locating and developing of mineral resources in the national forests may not be prohibited nor so unreasonably circumscribed as to amount to a prohibition…”(See; Weiss, 642 F.2d at 299)

“Under our form of government, the legislature is not supreme. It is only one of the organs of that absolute sovereignty which resides in the whole body of the People. And like other bodies of government, it can only exercise such powers as have been delegated to it, and when it steps beyond that boundary, its acts are utterly void.” (See; Billings v. Hall, 7 California 1.). Furthermore, “An act altering, or destroying the nature, or tenure of estates is void”. (See; Dewey v. Lambier 7 Cal. 347)

SB 670 immediately inflicted an illegal compensable private property taking the day it became law. By arbitrarily prohibiting all placer mining claim owners in California, all beneficial use of their mineral estate for an indeterminate period of time. In effect “taking” everything they own. The monetary magnitude of which, is as of yet unascertainable. But, with assurance, annually could amount to fifty (50) times the 1.5 million dollar cost of funding this very CEQA.

Absurdly, the state legislature negligently failed to contemplate the compensable private property takings, SB 670 would arbitrarily inflict statewide. DFG is wrong to assume only three thousand two hundred (3,200) individuals are involved. That being the number of dredging permits, DFG usually issues annually. When, in fact SB 670, DFG, and CEQA actions here have, and continue to punitively destroy every fundamental attribute of ownership of near one hundred fifty thousand (150,000) mining claim owners statewide have.

Anyone thinking all mining claim owners in California will stand idly by, doing nothing, while SB 670 illegally deprives them of all use, utility, benefit, value, and profit derived from their private property is wrong. As doing so is a constitutionally forbidden de facto taking without compensation. Which, all mining claim owners throughout California will certainly never allow. That silent majority will in the foreseeable future, step forward in court, en mass to demand just compensation due them. Plus interest compounding from August 6th 2009, the day SB 670 caused this compensable “taking“.

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GENERAL COMMENT # 3

DFG has no regulatory power over “natural resources”

CA F&G CODE Section 200

200. There is hereby delegated to the commission the power to regulate the taking or possession of birds, mammals, fish, amphibia, and reptiles to the extent and in the manner prescribed in this article.

CA F&G CODE Section 201. Nothing in this article confers upon the commission any power to regulate any natural resources or commercial or other activity connected therewith, except as specifically provided.

The protection of mineral resources in California is the responsibility of the following agencies. Which either have statutory authority or are Responsible Agencies under CEQA:

1. California Department of Conservation is the primary agency with regard to mineral resource protection. The Department is charged with conserving earth resources (Public Resources Code Sections 600-690)

2. State Mining and Geology Board, which develops policy direction regarding the development and conservation of mineral resources and reclamation of mined lands.

Without doubt, valuable minerals, particularly placer gold is a natural recourse. The Commission and Department may only act in compliance with state law. “An administrative agency must act within the powers conferred upon it by law and may not act in excess of those powers” (See; American Federation of Labor v. Unemployment Ins. Appeals Bd. (1996) 13 Cal.4th 1017, 1042; see Woods v. Superior Court (1981) 28 Cal.3d 668, 679; Wildlife Alive v. Chickering (1976) 18 Cal.3d 190, 295; Ferdig v. State Personnel Board (1969) 71 Cal.2d 96, 103.)

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GENERAL COMMENT # 4

Small scale suction dredge gold mining is statutorily exempt from DFG permitting

The Surface Mining and Reclamation Act of 1975, (SMARA), Public Resources Code (PRC) Section 2710 et seq., at Section 2714(d) expressly EXEMPTS “Prospecting for, or the extraction of, minerals for commercial purposes and the removal of overburden in total amounts of less than 1,000 cubic yards in any one acre or less.”

All small scale suction dredge permits fit within that exemption. Given that SMARA statutory “exemption”, a direct conflict in California law exists. Until such time as that conflict SB 670 created is resolved, DFG cannot legally withhold small scale suction dredge permits, nor perform this CEQA study.

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GENERAL COMMENT # 5

DFG must consult with both the USFS, and BLM in this CEQA process.

SEE EXHIBIT # 1, Eight (8) page Memorandum of Understanding between CA Dept. of Conservation, State Mining & Geology Board, USFS & BLM.

GENERAL COMMENT # 6

DFG must consult with every agency or land planning entity in California.

Given this CEQA study is “statewide”, every local, regional, and state agency that effects any land planning ordinance or measure must be included.

GENERAL COMMENT # 7

DFG must give “Notice” to every mining claim owner statewide.

In that this CEQA study directly effects the private property, and vested water rights of every mining claim owner statewide. And, that each mining claim owner is placed in the position of a CEQA “applicant”. Even if made so by provisions of SB 670. Each must be given actual notice of the project, and be allowed to give written input into the process.

GENERAL COMMENT # 8

DFG must “refund” permitting fee’s for all permits DFG canceled.

The term “vested mining right” includes both a right established by use, as well as a right established by permit. (See; TransOceanic Oil Corporation v. Santa Barbara (1948) 85 Cal.App.2d 776; Avco Community Developers, Inc. v. South Coast Regional Comm’n. (1976) 17 Cal.3d 785, 790 [a permit becomes a vested property right where the permittee has incurred substantial liabilities and performed substantial work in reliance on the permit]; Goat Hill Tavern v. City of Costa Mesa (1992) 6 Cal.App.4th 1519; Hansen Bros. Enterprises v. Board of Supervisors of Nevada County (1996) 12 Cal.4th 533 (“Hansen”).)

Even if an agency withdraws a regulation, the property owner may have a right to just compensation for the temporary taking while the regulation was in effect (See; First Lutheran Church v. Los Angeles County (1987) 482 U.S. 304, 317, 321.)

Each suction dredge permit holder has a vested property right in their individual permit. Each permit holder is an effected party, and in the position of an CEQA “applicant”. DFG must give each actual notice of this CEQA project, and make provision for refund to each.

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GENERAL COMMENT # 9

Economic impacts must be included in this CEQA study

Generally, “economic impacts” need not be included within a “CEQA” study. As economic impacts are not potential, or actual physical changes to the environment. Here however, when temporary, or permanent closures of given area’s statewide may be utilized to “mitigate” or “avoid” significant effects to the environment attributed to suction dredging, economic impact is relevant to measure the significance of an environmental impact.

In-so-far as this CEQA study has a direct potential to “take” compensable private property rights of all mining claim owners statewide, valued over 1 billion dollars ($1,000.000,000). DFG cannot deny that effect is “significant”, and it must be included in this CEQA study.

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GENERAL COMMENT # 12

Two differing standards are required to avoid preemption by federal law

The state of California is free to regulate whatever it may. In any way the California the Statehood Admission Act, State Constitution, and Legislature legally provides. However, the state cannot intentionally defy federal law, as the U.S Constitution forbids such acts, by any state in the union, absent cessation.

Given that the majority of all small scale suction dredging statewide in California is performed on mining claims, on federal lands. The state cannot preempt federal law governing such things. Consequently, because the federal government is the higher, and absolute sovereign of all it owns. Absent cessation from the Union, the state of California cannot preempt federal law.

So-as-to avoid collision and preemption by federal law, would require DFG to establish, and promulgate differing regulatory standards for small scale suction dredging on mining claims on federal lands, verses everywhere else, statewide. As, one set of regulatory standards would not suffice. Unless that single set was tailored to suit federal law, as it pertains to all mining claims statewide, besides everywhere else.

No natural mineral resource deposit exists, in tidy packages, in orderly plastic wrapped stacks, on a shipping platform, waiting to be discovered, 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 the 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 cold, naked, hungry, without shelter, telephones, vehicles, electricity or every other modern necessity, or convenience mined mineral resources make possible. The legislature might come to the full realization of how foolish, and arbitrary SB 670 actually is. What next, stop limestone, or aggregate mining in California, destroying the states domestic production of cement, and concrete? In turn destroying the states construction industry.

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GENERAL COMMENT # 14

DFG cannot use a CEQA study to promulgate conflicts in law.

It is an fundamental principle of California law that where legal activities that will be restricted by environmental laws, only be restricted to the extent required to mitigate their adverse effects on California Fish and Wildlife. Where mitigation measures are required, “the measures or alternatives required shall be roughly proportional in extent to any impact on those species that is caused by that person”( FGC § 2052.1).

The California Endangered Species Act specifically provides that agencies shall develop measures that avoid jeopardizing listed species “while at the same time maintaining the project purpose to the greatest extent possible” (FGC § 2053);

The standard of restraining restrictions to the minimal extent necessary is also fully incorporated into CEQA, and made particularly applicable to judicial relief. Court’s orders “shall include only those mandates which are necessary to achieve compliance with this division and only those specific project activities in noncompliance with this division”. PRC § 21168.9(B )

A public agency’s discretion to find project alternatives infeasible based on the incompatibility of the alternatives with either the agency’s policy considerations or the objectives of the project, has been enhanced considerably through a recent published appellate court opinion. California Native Plant Society, et al. v. City of Santa Cruz, et al. (H032502, September 18, 2009).

In particular, an agency shall not “take any action which gives impetus to a planned or foreseeable project in a manner that forecloses alternatives or mitigation measures that would ordinarily be part of CEQA review of that public project.” CEQA Guidelines § 15004(B )(2)(B ). This is especially important where, as here, a public agency is entrusted with reviewing and approving its own project. See Laurel Heights I, 47 Cal.3d at 395.

A new appellate decision in a CEQA case affirms a lead agency’s authority to reject environmental impact report (EIR) alternatives as infeasible on policy grounds. (California Native Plant Society et al. v. City of Santa Cruz (6th District Court of Appeal, filed Aug. 20, 2009, pub. order Sep. 18, 2009, Case No. H032502).)

CEQA clearly provides that an agency may find that an environmentally superior alternative is infeasible on various grounds, including “pecific economic, legal, social, technological, or other considerations . . . .” (Pub. Resources Code, § 21081(a)(3); CEQA Guidelines, § 15091(a)(3), emphasis added.)

If, as a result of this CEQA study, if DFG promulgates further in-stream restrictions, or extends existing seasonal closures, or completely closes any California waterway. That was open in pre-SB 670 DFG regulations. That would “effect” a compulsory “taking” of private property rights, over any federal mining claim situated anywhere statewide, that could occur.

CEQA Guidelines Section 15364, “feasible” (for CEQA purposes) means “capable of being accomplished in a successful manner within a reasonable period of time, taking into account economic, environmental, legal, social, and technological factors.”

That would effectively make the application of CEQA “infeasible” to any valid existing mining claims situated over waterways on federal public domain lands in California.

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This is 38 pages long.

I did not go to the trouble to edit the formating quirks that create the smiley faces in it here.

They do not exist in the paper document.

Nor, did I take time to correct the spacing flaws cutting/pasting this document here caused.

DFG is going LOVE this.

Mark Stopher

California DF&G

601 Locust

Redding Ca. 96001

Nov. 30, 2009

California Department of Fish and Game

Suction Dredge Mining and Rule Making Process

Constructive Notice & Comment:

Dear Mr. Stopher,

No disrespect is meant to you personally. But, I do not appreciate, and am in fact utterly outraged at being de facto forced to participate in this costly, arbitrary, error prone, unnecessary rule making process covering suction dredge mining in the state of California. I only do so, in order to adamantly defend my own, my families, and all others involved constitutionally protected private property rights.

PREFACE

The Governor of California signed SB 670 legislation into law, as an “urgency” measure August 6th 2009, lacking evidentiary support, as no “statutory” emergency existed. SB 670 took effect immediately, and mandated the issuance of small scale suction dredge gold mining permits by the Department of Fish & Game (DFG), a California Environmental Quality Act (CEQA) “project”. As well as arbitrarily prohibited the issuance of permits covering all small scale suction dredge gold mining statewide, for an indeterminate period, until various contingencies of SB 670 are met. Some of which may never occur.

The application of CEQA, to all small scale suction dredge gold mining statewide, is legally challenging, faces numerous uncertainties, obstacles, and may not be achievable in any legal or constructively meaningful way. That is so, for the long series of material facts, and profound legal reasons, in no particular order of priority, as follows:

GENERAL COMMENT # 1

DFG has no legal mandate or statutory

authority to perform a statewide CEQA study

SB 670 statewide suction dredge prohibition is in effect until;

(1) The department has completed the environmental review of its existing suction dredge mining regulations, as ordered by the court 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.

That court order in pertinent part reads; “THEREFORE, the Department is hereby ORDERED to conduct a further environmental review pursuant to CEQA of it’s 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.”.

The court order SB 670 relies on specifically covers only the three distinct watersheds, of the Klamath, Scott, and Salmon Rivers.

As such, DFG has no legislative mandate, nor statutory, or regulatory authority, to perform a statewide CEQA study of it’s suction dredge mining regulations. Therefore, I “Protest” DFG illegal actions in implementing, and performing a statewide CEQA study of it’s suction dredge mining regulations. And, as a “taxpayer” in the state of California, I demand DFG stop these illegal, wasteful actions. Otherwise, I have no recourse but to bring an appropriate action in law, to have it stopped.

GENERAL COMMENT #2

Enforces an unconstitutional “taking”

of private property, without first paying compensation.

Almost all small scale suction dredge gold mining statewide in California occurs on valid unpatented, and patented (fee simple) mining claims spread statewide on federal public domain. Near forty five percent (45%) of California is federally owned public domain lands. Primarily managed by the U.S. forest Service (USFS), and Bureau of Land Management (BLM). Federal public domain lands, and all unpatented mining claims on it, are under express federal statutory jurisdiction of the U.S. Forest Service (USFS), or Bureau of Land Management (BLM).

Thus, express federal policy, jurisdiction, dominant governing law, land planning, mining law, and regulation are manifestly applicable to all small scale suction dredge gold mining on federal public domain lands in California. DGF as a CEQA “lead agency“, if acting in “good faith” cannot arbitrarily ignore, or omit that paramount federal presence, physical circumstance, or legal fact. Unless, SB 670’s intent is to foolishly cause a direct collision between dominant federal law, and subservient state law?

“Congress shall have Power to dispose of and make all needful Rules and Regulations respecting the Territory or other Property belonging to the United States." (See, US Const, Art IV, § 3, cl. 2 (the "Property Clause"). This provision, combined with the Supremacy Clause of the United States Constitution (Art 6, cl 2), gives the federal government extremely broad authority to preempt the application of state laws to federal property when those state laws conflict with a federal mandate.

The General Mining Law (30 U.S.C. § 21 et seq.), in fact owes its origin to the discovery of gold in California, in 1848. The bulk of it’s statutory construction resulted from local miners rules originating in California during the gold rush era. 30 U.S.C. § 21 et seq., is a direct federal mandate to all western states where federal mining claims may be initiated, worked, and held. California accepted that federal mandate, upon admission as state by legislative implementation of what is now Public Resource Code § 3900 et seq. Which, with very minor differences (not in conflict with federal law) mirrors the discovery, posting, recording, and annual work requirements for the maintenance of title of all mining claims existing in California.

The Supremacy clause of the U.S. Constitution (Art. VI, paragraph 2) mandates federal law “preempts” state law, where direct conflicts arise. No matter how meritorious the intent of CEQA is. It simply cannot preempt overriding federal law. Framers of SB 670, and CEQA obviously never contemplated direct collision, or preemption by dominant federal law. The winner in direct collision of state, and federal law is overwhelmingly obvious. Federal law is supreme.

If Congress has not entirely displaced state regulation over the matter in question, state law is still preempted to the extent it actually conflicts with federal law, that is, when it is impossible to comply with both state and federal law, or where the state law stands as an obstacle to the accomplishment of the full purposes and objectives of Congress, (See: California Coastal Comm’n v. Granite Rock Co., 480 U.S. 572, 581 (1987).

“Any state legislation which frustrates the full effectiveness of federal law is rendered invalid by the Supremacy Clause" regardless of the underlying purpose of its enactors.” (See; Perez v. Campbell, 402 U.S. 637, 651-52, 91 S.Ct. 1704, 29 L.Ed.2d 233 (1971).

A conflict exists if a party cannot comply with both state law and federal law. In addition, even in the absence of a direct conflict between state and federal law, a conflict exists if the state law is an obstacle to the accomplishment and execution of the full purposes and objectives of Congress. Crosby v. Nat’l Foreign Trade Council, 530 U.S. 363, 372-73 (2000).

It has long been established that "a state statute is void to the extent that it actually conflicts with a valid federal statute" and that a conflict will be found either where compliance with both federal and state law is impossible or where the state law stands as an obstacle to the accomplishment and execution of the full purposes and objectives of Congress. (See; Edgar v. Mite Corp., 457 U.S. 624, 631 (1982), et al.).

As long as the Federal government retains title, the federal interest in providing free access to its own land in order to promote mining is sufficient to preempt any state law that fundamentally bans such use. Thus under standard preemption analysis any state legislation, or regulation that conflicts with this overriding federal purpose, must fail.

To anyone knowledgeable, it is utterly clear that, "State and local regulations which render a mine commercially impracticable cannot be enforced". (See; California Coastal Commission et al., v. Granite Rock Co., 480 U.S. 572, 592, 107 S.Ct.1419, 1425(1987).

South Dakota Mining Association Inc v. Lawrence County, 155 F.3d 1005 sets the precedent here, and reads as follows. “The ordinance's de facto ban on mining on federal land acts as a clear obstacle to the accomplishment of the Congressional purposes and objectives embodied in the Mining Act. Congress has encouraged exploration and mining of valuable mineral deposits located on federal land and has granted certain rights to those who discover such minerals. Federal law also encourages the economical extraction and use of these minerals.

The Lawrence County ordinance completely frustrates the accomplishment of these federally encouraged activities. A local 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. The district court correctly ruled that the ordinance was preempted. Accordingly, we affirm the judgment of the district court.”

The California Statehood Admission Act (Sec. 3) expressly provides; “…said State of California is admitted into the Union upon the express condition that the people of said State, through their legislature or otherwise, shall never interfere with the primary disposal of the public lands within its limits, and shall pass no law and do no act whereby the title of the United States to, and right to dispose of, the same shall be impaired or questioned…”.

Indisputably, the state of California, it’s legislature, and all state regulatory agencies are expressly barred from impairing, or even questioning federal mining claim owners vested right to mine, and their private property rights held under federal law. Certainly, the state can “reasonably” “regulate” small scale suction dredge gold mining. But cannot make that regulation so onerous as to arbitrarily prohibit mining, even temporarily, without incurring monumental financial liability.

The U.S. Supreme Court has unwaveringly held that valid mining claims are a form of “private & real property” In ordinary English, a "claim" is merely a demand for something, or an assertion of a right where the right has not been established. The phrase "mining claim" therefore probably connotes to most laymen an unsupported assertion or demand from which no legal rights can be inferred. But that is emphatically not so.

“In law, the word "claim" in connection with the phrase "mining claim" represents a federally recognized right in real property. The Supreme Court has established that a mining "claim" is not a claim in the ordinary sense of the word--a mere assertion of a right--but rather is a property interest, which is itself real property in every sense, and not merely an assertion of a right to property.” (See; Benson Mining & Smelting Co. v. Alta Mining & Smelting Co., 145 U.S.428 (1892)

Valid placer mining claims situated over California waterways grant the owners “vested” riparian water rights. The riparian owner is subject to the doctrine of reasonable use, which limits all rights to the use of water to, that quantity reasonably required for beneficial use and prohibits waste or unreasonable use or unreasonable methods of use or diversion. (See; Sec. 3, Art. XIV, Const. of Cal.; Peabody v. City of Vallejo, 2 Cal. 2d 351, 40 Pac. 2d 486; Tulare Irr. Dist. et al v. Lindsay Strathmore Irr. Dist., 3 Cal. 2d 489, 45 Pac. 2d 972; Rancho Santa Marqarita v. Vail, 11 Cal. 2d 501, 81 P. 2d 533).

Vested rights are fully protected from “taking” by the government under the fifth amendment to the Constitution. See Solicitor’s Opinion M-36910 (Supp.), 88 Interior Dec. 909, 912 (Oct 5, 1981); Wyoming v. United States, 255 U.S. 489, 501-02 (1921); Appeal of Eklutna, 83 Interior Dec. 619 (Dec. 10, 1976).

Section 104(B) of the California Revenue and Taxation Code defines real property in part as "All mines, minerals, and quarries in the land, and all rights and privileges appertaining thereto." The term “land” is defined in Property Tax Rule 121 in relevant part as “the possession of, claim to, ownership of, or right to possession of land; mines, quarries, and unextracted mineral products. All real property not exempt or immune from taxation is subject to property tax.

The terms "mineral rights" and "mining rights" as described in Section 607.5 include the right to enter in or upon the land for the exploration, development, and production of minerals. The taxability of unpatented mining claims was established more than a century ago by the California Supreme Court, in the case of the State of California v. Moore 12 Cal. 56 (1859), which stated in part: "The interest of the occupant of a mining claim is property, and, under the Constitution, it is in the power of the Legislature to tax such property."

This private property right entitles the owner to "the right to extract all minerals from the claim without paying royalties to the United States." (See; Swanson v. Babbitt, 3 F.3d 1348, 1350 (9th Cir. 1990). As such, the owners vested “right” to mine, as well as the mining claim, being “real property” itself is fully protected from uncompensated “taking” by provisions of the U.S. Constitution (Amend. 5). No one can rationally refute, ownership of a mining claim, containing a valuable mineral deposit, does not include the right to mine it. As one is absolutely premised upon the other. Otherwise, all private property protections provided by the U.S Constitution would be meaningless.

The California Constitution. (Art. I, § 19 (a), provides, “… Private property may be taken or damaged for a public use and only when just compensation, ascertained by a jury unless waived, has first been paid to, or into court for, the owner…”. That also, would be meaningless. United States Court of Appeals, Ninth Circuit (1980). “…prospecting, locating and developing of mineral resources in the national forests may not be prohibited nor so unreasonably circumscribed as to amount to a prohibition…”(See; Weiss, 642 F.2d at 299)

“Under our form of government, the legislature is not supreme. It is only one of the organs of that absolute sovereignty which resides in the whole body of the People. And like other bodies of government, it can only exercise such powers as have been delegated to it, and when it steps beyond that boundary, its acts are utterly void.” (See; Billings v. Hall, 7 California 1.). Furthermore, “An act altering, or destroying the nature, or tenure of estates is void”. (See; Dewey v. Lambier 7 Cal. 347)

SB 670 immediately inflicted an illegal compensable private property taking the day it became law. By arbitrarily prohibiting all placer mining claim owners in California, all beneficial use of their mineral estate for an indeterminate period of time. In effect “taking” everything they own. The monetary magnitude of which, is as of yet unascertainable. But, with assurance, annually could amount to fifty (50) times the 1.5 million dollar cost of funding this very CEQA.

Absurdly, the state legislature negligently failed to contemplate the compensable private property takings, SB 670 would arbitrarily inflict statewide. DFG is wrong to assume only three thousand two hundred (3,200) individuals are involved. That being the number of dredging permits, DFG usually issues annually. When, in fact SB 670, DFG, and CEQA actions here have, and continue to punitively destroy every fundamental attribute of ownership of near one hundred fifty thousand (150,000) mining claim owners statewide have.

Anyone thinking all mining claim owners in California will stand idly by, doing nothing, while SB 670 illegally deprives them of all use, utility, benefit, value, and profit derived from their private property is wrong. As doing so is a constitutionally forbidden de facto taking without compensation. Which, all mining claim owners throughout California will certainly never allow. That silent majority will in the foreseeable future, step forward in court, en mass to demand just compensation due them. Plus interest compounding from August 6th 2009, the day SB 670 caused this compensable “taking“.

GENERAL COMMENT # 3

DFG has no regulatory power over “natural resources”

CA F&G CODE Section 200

200. There is hereby delegated to the commission the power to regulate the taking or possession of birds, mammals, fish, amphibia, and reptiles to the extent and in the manner prescribed in this article.

CA F&G CODE Section 201. Nothing in this article confers upon the commission any power to regulate any natural resources or commercial or other activity connected therewith, except as specifically provided.

The protection of mineral resources in California is the responsibility of the following agencies. Which either have statutory authority or are Responsible Agencies under CEQA:

1. California Department of Conservation is the primary agency with regard to mineral resource protection. The Department is charged with conserving earth resources (Public Resources Code Sections 600-690)

2. State Mining and Geology Board, which develops policy direction regarding the development and conservation of mineral resources and reclamation of mined lands.

Without doubt, valuable minerals, particularly placer gold is a natural recourse. The Commission and Department may only act in compliance with state law. “An administrative agency must act within the powers conferred upon it by law and may not act in excess of those powers” (See; American Federation of Labor v. Unemployment Ins. Appeals Bd. (1996) 13 Cal.4th 1017, 1042; see Woods v. Superior Court (1981) 28 Cal.3d 668, 679; Wildlife Alive v. Chickering (1976) 18 Cal.3d 190, 295; Ferdig v. State Personnel Board (1969) 71 Cal.2d 96, 103.)

GENERAL COMMENT # 4

Small scale suction dredge gold mining

is statutorily exempt from DFG permitting

The Surface Mining and Reclamation Act of 1975, (SMARA), Public Resources Code (PRC) Section 2710 et seq., at Section 2714(d) expressly EXEMPTS “Prospecting for, or the extraction of, minerals for commercial purposes and the removal of overburden in total amounts of less than 1,000 cubic yards in any one acre or less.”

All small scale suction dredge permits fit within that exemption. Given that SMARA statutory “exemption”, a direct conflict in California law exists. Until such time as that conflict SB 670 created is resolved, DFG cannot legally withhold small scale suction dredge permits, nor perform this CEQA study.

GENERAL COMMENT # 5

DFG must consult with both the USFS, and BLM in this CEQA process.

SEE EXHIBIT # 1, Eight (8) page Memorandum of Understanding between CA Dept. of Conservation, State Mining & Geology Board, USFS & BLM.

GENERAL COMMENT # 6

DFG must consult with every agency or land planning entity in California.

Given this CEQA study is “statewide”, every local, regional, and state agency that effects any land planning ordinance or measure must be included.

GENERAL COMMENT # 7

DFG must give “Notice” to every mining claim owner statewide.

In that this CEQA study directly effects the private property, and vested water rights of every mining claim owner statewide. And, that each mining claim owner is placed in the position of a CEQA “applicant”. Even if made so by provisions of SB 670. Each must be given actual notice of the project, and be allowed to give written input into the process.

GENERAL COMMENT # 8

DFG must “refund” permitting fee’s for all permits DFG canceled.

The term “vested mining right” includes both a right established by use, as well as a right established by permit. (See; TransOceanic Oil Corporation v. Santa Barbara (1948) 85 Cal.App.2d 776; Avco Community Developers, Inc. v. South Coast Regional Comm’n. (1976) 17 Cal.3d 785, 790 [a permit becomes a vested property right where the permittee has incurred substantial liabilities and performed substantial work in reliance on the permit]; Goat Hill Tavern v. City of Costa Mesa (1992) 6 Cal.App.4th 1519; Hansen Bros. Enterprises v. Board of Supervisors of Nevada County (1996) 12 Cal.4th 533 (“Hansen”).)

Each suction dredge permit holder has a vested property right in their individual permit. Each permit holder is an effected party, and in the position of an CEQA “applicant”. DFG must give each actual notice of this CEQA project, and make provision for refund to each.

GENERAL COMMENT # 9

Economic impacts must be included in this CEQA study

Generally, “economic impacts” need not be included within a “CEQA” study. As economic impacts are not potential, or actual physical changes to the environment. Here however, when temporary, or permanent closures of given area’s statewide may be utilized to “mitigate” or “avoid” significant effects to the environment attributed to suction dredging, economic impact is relevant to measure the significance of an environmental impact.

In-so-far as this CEQA study has a direct potential to “take” compensable private property rights of all mining claim owners statewide, valued over 1 billion dollars ($1,000.000,000). DFG cannot deny that effect is “significant”, and it must be included in this CEQA study.

GENERAL COMMENT # 10

Mining claims situated over California waterways own “riparian” water use rights

In 1870, Congress extended priority water rights "to all public lands affected by this act; and all patents granted, or pre-emption or homesteads allowed, shall be subject to any vested and accrued water rights, or rights to ditches and reservoirs used in connection with such water rights, as may have been acquired under or recognized by" the 1866 act (See; Act of July 9, 1870, ch. 235, ' 17, 16 Stat. 218).

RIPARIAN RIGHTS: No California statute defines riparian rights, but a modification of the common law doctrine of riparian rights has been established in this State by decisions of the courts and confirmed by the provisions of section 3, Article XIV of the California Constitution (see California Water Code sections 100, 101). Lands within the watershed of a natural watercourse, which are traversed thereby or border thereon, with the exceptions and limitations hereinafter, indicated, may be riparian. Each owner thereof may have a right, which is correlative with the right of each other riparian owner to share in the reasonable beneficial use of the natural flow of water, which passes his land.

No permit is required for such use. The State Water Resources Control Board's (SWRCB) policy is to consider natural flow as not including return flows derived from use of ground water, water seasonally stored and later released, or water diverted from another watershed. In administering the California Water Code, the SWRCB is governed by the following considerations relative to the doctrine of riparian rights as applied to this State:

The riparian right exists by reason of ownership of land abutting upon a stream or body of water and affords no basis of right to use water upon nonriparian land ( See; Rancho Santa Marqarita v. Vail, 11 Cal. 2d 501, 81 P. 2d 533)

The riparian owner is subject to the doctrine of reasonable use, which limits all rights to the use of water to, that quantity reasonably required for beneficial use and prohibits waste or unreasonable use or unreasonable methods of use or diversion. (Sec. 3, Art. XIV, Const. of Cal.; Peabody v. City of Vallejo, 2 Cal. 2d 351, 40 Pac. 2d 486; Tulare Irr. Dist. et al v. Lindsay Strathmore Irr. Dist., 3 Cal. 2d 489, 45 Pac. 2d 972; Rancho Santa Marqarita v. Vail, 11 Cal. 2d 501, 81 P. 2d 533)

Riparian rights entitle the landowner to use a share of the water flowing past his or her property. While riparian rights require no permits or licenses, they apply only to the water that would naturally flow in the stream and they do not allow the user to divert water for storage or use it on land outside its watershed. Riparian rights remain with the property when it changes hands

It is the established doctrine of this court that rights of miners ... and the rights of persons who had constructed canals and ditches to be used in mining operations and for purposes of agricultural irrigation, in the region where such artificial use of the water was an absolute necessity, are rights which the government had, by its conduct, recognized and encouraged and was bound to protect, before the passage of the act of 1866. We are of the opinion that [section 9] of the act ... was rather a voluntary recognition of a pre-existing right of possession, constituting a valid claim to its continued use, than the establishment of a new one (See; Broder, at 276. (Broder v. Natoma Water & Mining] Co., [101 U.S. 274 (1879).

The right to use water is a property right and may be protected against infringement in the same manner as any other property right; i.e., by appropriate court action.

Therefore, all mining claims situated over California waterways grant the owner have right to “appropriate”, and put that water there, to “beneficial use“. Neither DFG, nor the State Water Resource Control Board have the regulatory authority to deny that use.

The intake, and discharge from suction dredges consists totally of stream water and bed substrate material. In other words, suction dredging adds nothing that isn’t already there, to a waterway. The only thing small scale suction dredge removes by design function are small amounts of valuable heavy metals trapped in the floating sluice box recovery system. In fact, suction dredging also removes lead sinkers, bullets, mercury, and metal fishing paraphernalia. All of which are certainly deleterious to water quality.

Small scale suction dredge gold mining does not discharge any deleterious chemical substance (e.g., pesticides, insecticides, petroleum products, etc.), or deleterious organic nutrient loading substances (e.g., phosphates, nitrates, urine, fecal matter, etc.) into California waterways.

Suction dredging does cause a mild fleeting increase in turbidity, for a short distance downstream from the site. But, even cumulatively, a mild fleeting, short distance increase in turbidity only, is not significantly deleterious to local, regional, or overall statewide water quality in California. In other words, suction dredging adds no “pollutants”. To set an environmental baseline consider, the combined number of swimmers, rafters, non-motorized, and motorized boating create far more turbidly than small scale suction dredging statewide.

GENERAL COMMENT # 11

Pre-SB 670 DFG regulations adequately protect fish, and water quality.

In streams or rivers where suction dredging occurs, the most critical life stage for salmon, or any other fish is the egg stage. Current (pre-SB 670) DFG regulations prohibits all suction dredging in locations where fish are spawning or where fish eggs or alevins are known to exist. Other DFG, and water quality regulations prohibit all ways and means that small scale suction dredge gold mining might otherwise pollute California waterways. Given that fact, rather than perform another unneeded costly EIR, it would be far more prudent, and cost effective to better enforce existing DFG regulations. Rather than spend $1.5 million dollars creating more, and unneeded new regulation.

GENERAL COMMENT # 12

Two differing standards are required to avoid preemption by federal law

The state of California is free to regulate whatever it may. In any way the California the Statehood Admission Act, State Constitution, and Legislature legally provides. However, the state cannot intentionally defy federal law, as the U.S Constitution forbids such acts, by any state in the union, absent cessation. Given that the majority of all small scale suction dredging statewide in California is performed on mining claims, on federal lands. The state cannot preempt federal law governing such things. Consequently, because the federal government is the higher, and absolute sovereign of all it owns. Absent cessation from the Union, the state of California cannot preempt federal law.

So-as-to avoid collision and preemption by federal law, would require DFG to establish, and promulgate differing regulatory standards for small scale suction dredging on mining claims on federal lands, verses everywhere else, statewide. As, one set of regulatory standards would not suffice. Unless that single set was tailored to suit federal law, as it pertains to all mining claims statewide, besides everywhere else.

No natural mineral resource deposit exists, in tidy packages, in orderly plastic wrapped stacks, on a shipping platform, waiting to be discovered, 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 the 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 cold, naked, hungry, without shelter, telephones, vehicles, electricity or every other modern necessity, or convenience mined mineral resources make possible. The legislature might come to the full realization of how foolish, and arbitrary SB 670 actually is. What next, stop limestone, or aggregate mining in California, destroying the states domestic production of cement, and concrete? In turn destroying the states construction industry.

GENERAL COMMENT # 13

NEPA standards verses CEQA standards conflict on federal lands in California

Various state agencies (including the State Water Resource Control Board) have “memorandums of understanding“, or various types of similar documents providing for a workable relationship with commercial activities on federal lands within the state of California, so-as-to avoid federal preemption conflicts.

43 U.S.C. §1702© defines multiple use as “a combination of balanced and diverse resource uses that takes into account the long-term needs of future generations for renewable and nonrenewable resources, including, but not limited to, recreation, range, timber, minerals, watershed, wildlife and fish, and natural scenic, scientific, and historical values; and harmonious and coordinated management of the various resources without permanent impairment of the productivity of the land and the quality of the environment with consideration being given to the relative values of the resources and not necessarily to the combination of uses that will give the greatest economic return or the greatest unit output.”

The General Mining Law (30 U.S.C. §§ 21 et seq.) applies to “Federal lands”. Meaning, “any lands or interest in lands owned by the United States, subject to location under the General Mining Law, including, but not limited to, those lands within forest reservations in the National Forest System and wildlife refuges in the National Wildlife Refuge System“.

The Mining and Minerals Policy Act of 1970 states: “The Congress declares that it is the continuing policy of the Federal Government in the national interest to foster and encourage private enterprise in (1) the development of economically sound and stable domestic mining, minerals, metal and mineral reclamation industries, (2) the orderly and economic development of domestic mineral resources, reserves, and reclamation of metals and minerals to help assure satisfaction of industrial, security, and environmental needs, …so as to lessen any adverse impact of mineral extraction and processing upon the physical environment that may result from mining or mineral activities.” 30 U.S.C. 21a.

Both USFS, and BLM agencies also have management authority under the Surface Resources Act, which applies to mining claims located after 1955: “Rights under any mining claim hereafter located under the mining laws of the United States shall be subject…to the right of the United States to manage and dispose of the vegetative surface resources thereof and to manage other surface resources thereof.” 30 U.S.C. §612.

Federal land management planning requirements. BLM land use plans under the Federal Land Policy and Management Act (FLPMA) 43 U.S.C. §§1701–1784.and Forest Service plans prepared under the National Forest Management Act, 16 U.S.C. §§1600–1687establish the parameters within which surface-disturbing activities may occur on BLM or Forest Service lands subject to the interests created by the General Mining Law. These planning processes are not linked to specific mining proposals, but are intended to guide broad agency management decisions about the use of federal lands and the management of resources on the land.

These land management plans do not override the private property interests acquired by the mining claimant under the General Mining Law, but provide a framework for agency consideration and protection of other resources. Preparation of these land management plans must comply with NEPA, which includes requirements for consideration of alternatives, as well as provisions for public scoping, review, and comment.

BLM and Forest Service regulations. Proposed mining activities on federal lands trigger the application of BLM's 43 CFR Part 3809 regulations, or the Forest Service's 36 CFR Part 228 regulations. The regulations themselves prescribe the review procedures requiring the submission of either notices or plans of operations.

The BLM regulations require no notice or other submission for “casual use ” operations involving “negligible” surface disturbance; whereas reclamation is required, no standards are set forth and no financial assurance guaranteeing reclamation is required.

The BLM regulations require submission of a notice for other operations disturbing 5 or fewer acres, but the BLM does not approve the notice or specify particular operating methods. Reclamation of these “notice-level” operations is required. Operations disturbing more than 5 acres must submit a “plan of operations” for review and approval by BLM and must post financial assurance in an amount determined by BLM to guarantee reclamation.

Plainly, the determination of what is significant can come only from a fair, reasonable, and consistent evaluation of proposed operations on a case-by-case, and site-by-site basis. The term, significant, is site-sensitive. A particular surface resource-disturbing activity in one area, might not be significant, while the same operation in another distinctly different area, could be highly significant.

Given, both USFS, and BLM have local district ranger offices, situated throughout the state, everywhere USFS, and BLM lands exist. As well as trained, and adequate personnel, to process every single small scale suction dredge “NOI”, and on a case-by-case, and “site” by “site” basis on all federal public domain lands statewide.

It would clearly reduce paperwork, duplication of effort, and administrative costs. If DFG were to simply let better qualified, better funded, USFS, and BLM local personnel simply do their job. Rather than complicate it, by promulgation of more unneeded, and conflicting state regulations over suction dredging . Which could be accomplished by one single simple statewide “Memorandum of Understanding” between DFG, USFS, and BLM. Rather than produce tons of paper, with no constructive use, as this CEQA study is doing here.

“BLM and the Forest Service are appropriately regulating these small suction dredge mining operations under current regulations as casual use or causing no significant impact, respectively” (See; NRC, Hardrock Mining on Federal Lands 96 (Nat’l Academy Press 1999).

GENERAL COMMENT # 14

DFG cannot use a CEQA study to promulgate conflicts in law.

It is an fundamental principle of California law that where legal activities that will be restricted by environmental laws, only be restricted to the extent required to mitigate their adverse effects on California Fish and Wildlife. Where mitigation measures are required, “the measures or alternatives required shall be roughly proportional in extent to any impact on those species that is caused by that person”( FGC § 2052.1).

The California Endangered Species Act specifically provides that agencies shall develop measures that avoid jeopardizing listed species “while at the same time maintaining the project purpose to the greatest extent possible” (FGC § 2053);

The standard of restraining restrictions to the minimal extent necessary is also fully incorporated into CEQA, and made particularly applicable to judicial relief. Court’s orders “shall include only those mandates which are necessary to achieve compliance with this division and only those specific project activities in noncompliance with this division”. PRC § 21168.9(B)

A public agency’s discretion to find project alternatives infeasible based on the incompatibility of the alternatives with either the agency’s policy considerations or the objectives of the project, has been enhanced considerably through a recent published appellate court opinion. California Native Plant Society, et al. v. City of Santa Cruz, et al. (H032502, September 18, 2009).

In particular, an agency shall not “take any action which gives impetus to a planned or foreseeable project in a manner that forecloses alternatives or mitigation measures that would ordinarily be part of CEQA review of that public project.” CEQA Guidelines § 15004(B)(2)(B). This is especially important where, as here, a public agency is entrusted with reviewing and approving its own project. See Laurel Heights I, 47 Cal.3d at 395.

A new appellate decision in a CEQA case affirms a lead agency’s authority to reject environmental impact report (EIR) alternatives as infeasible on policy grounds. (California Native Plant Society et al. v. City of Santa Cruz (6th District Court of Appeal, filed Aug. 20, 2009, pub. order Sep. 18, 2009, Case No. H032502).)

CEQA clearly provides that an agency may find that an environmentally superior alternative is infeasible on various grounds, including “pecific economic, legal, social, technological, or other considerations . . . .” (Pub. Resources Code, § 21081(a)(3); CEQA Guidelines, § 15091(a)(3), emphasis added.)

If, as a result of this CEQA study, if DFG promulgates further in-stream restrictions, or extends existing seasonal closures, or completely closes any California waterway. That was open in pre-SB 670 DFG regulations. That would “effect” a compulsory “taking” of private property rights, over any federal mining claim situated anywhere statewide, that could occur.

CEQA Guidelines Section 15364, “feasible” (for CEQA purposes) means “capable of being accomplished in a successful manner within a reasonable period of time, taking into account economic, environmental, legal, social, and technological factors.”

That would effectively make the application of CEQA “infeasible” to any valid existing mining claims situated over waterways on federal public domain lands in California.

GENERAL COMMENT # 15

DFG’s issuance of suction dredge mining permits is made “Ministerial” by overriding federal law, provisions of the U.S. Constitution, the California Statehood Act, and the California Constitution as they apply to mining rights, on mining claims, on federal public domain lands within California. Which comprises 45% of said state.

Title 14. California Code of Regulations. Chapter 3. Guidelines for Implementation of the California Environmental Quality Act Article 19. Categorical Exemptions 15300. Categorical Exemptions Section 21084 of the Public Resources Code requires these Guidelines to include a list of classes of projects which have been determined not to have a significant effect on the environment and which shall, therefore, be exempt from the provisions of CEQA.

In response to that mandate, the Secretary for Resources has found that the following classes of projects listed in this article do not have a significant effect on the environment, and they are declared to be categorically exempt from the requirement for the preparation of environmental documents. Note: Authority cited: Section 21083, Public Resources Code; Reference: Section 21084, Public Resources Code.

15300.1. Relation to Ministerial Projects. Section 21080 of the Public Resources Code exempts from the application of CEQA those projects over which public agencies exercise only ministerial authority. Since ministerial projects are already exempt, categorical exemptions should be applied only where a project is not ministerial under a public agency's statutes and ordinances.

Both by governing federal policy, directives, statute, and governing U.S. Supreme Court case law. No state agency can make permitting regulations so onerous that it effects an outright ban on mining federal lands. Nor may any state agency de facto, or otherwise prohibit such mining. Federal laws allows no such discretion, thus as far as small scale suction dredging permits apply to federal mining claims on feeder lands within California. DFG has no “discretion” to not issue such permits.

Small scale suction dredge gold mining is also categorically exempt from permitting under section 15304. Minor Alterations to Land. Class 4 consists of minor public or private alterations in the condition of land, water, and/or vegetation which do not involve removal of healthy, mature, scenic trees except for forestry or agricultural purposes.

The Surface Mining and Reclamation Act of 1975, (SMARA), Public Resources Code (PRC) Section 2710 et seq., at Section 2714(d) expressly EXEMPTS “Prospecting for, or the extraction of, minerals for commercial purposes and the removal of overburden in total amounts of less than 1,000 cubic yards in any one acre or less.”

Given, those combined authorities, DFG lacks discretion to refuse to issue small scale suction dredge gold mining permits. As, doing so is contrary to governing law. “An act altering, or destroying the nature, or tenure of estates is void”. (See; Dewey v. Lambier 7 Cal. 347)

GENERAL COMMENT # 16

CEQA only applies to “IN” -stream effects

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 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, or impact, direct, cumulative or otherwise anywhere other than “in“-stream”, in California waterways.

General Comment # 17

Ultimately, the stance that small scale suction dredge gold mining activity could jeopardize the continued existence of any salmon, or trout species is scientifically unsustainable. During the great California gold rush, and for decades thereafter, gold miners washed entire mountain sides and millions of pounds of toxic mercury into California rivers and streams, while salmon runs continued at record levels.

In one day of any annual fishing season alone, California fisherman, or Indian tribes catching, and killing salmon, or trout manifestly “affects the species” more than all small scale suction dredge gold mining conducted statewide has since its inception fifty (50) years ago.

DFG is in the incongruous conflicting legal position of on one hand, promoting, permitting and licensing salmon, and trout fishing statewide. Which, by California Fish And Game Code Section 86 definition equates to "Take" meaning hunt, pursue, catch, capture, or kill, or attempt to hunt, pursue, catch, capture, or kill….”. Which promotes the “catching and killing” of fish.

On the other hand, DFG is scathingly burdened with the task of permitting small scale suction dredge gold mining statewide. Which, SB 670 mandates is now a CEQA project. Placing DFG in the preposterous position implementing environmental safeguards to “protect” the same fish, that proponents of SB 670, such as the;

Association of Tribal Governments, California Coast-keeper Alliance, California Sport-fishing Protection Alliance, California Tribal Business Alliance, California Trout, Clean Water Action, Defenders of Wildlife, Environmental Justice Coalition for Water, Friends of the North Fork, Friends of the River, Karuk Tribe, Klamath River-keeper, Pacific Coast Fed. of Fishermen's Assoc., Planning and Conservation League, Ramona Band of Cahuilla Indians, Resighini Rancheria, Rogue River-keeper, San Manuel Band of Mission Indians, Sierra Club California, Sierra Nevada Alliance, Sycuan Band of the Kumeyaay Nation, and The Sierra Fund;

Can catch, and kill them. That position is morally reprehensible, to anyone with common sense mentally impossible to fathom, and manifestly untenable. This is a perfect example of mutually incompatible statutory directives.

General Comment # 18

DFG CODE 5653. (a) The use of any vacuum or suction dredge equipment by any person in any river, stream, or lake of this state is prohibited, except as authorized under a permit issued to that person by the department in compliance with the regulations adopted pursuant to Section 5653.9.

The word “person” would seem to be all inclusive, unless otherwise provided for by statute, and subsequent regulation derived from that statute. Which, in the case DFG is specifically as follows:

DFG CODE 5653.8. For purposes of Sections 5653 and 5653.3, "person" does not include a partnership, corporation, or other type of association.

Valid unpatented placer mining claim owners act in “association” with Federal Mining Law. Accepting that federal “grant” to explore for, find, initiate ownership of, and mine at their own risk, and expense applicable valuable minerals situated on or within federal lands, open to such mineral entry. In fact, any valid unpatented placer mining claim is made in “partnership” with the federal government, under grant provided for within the Federal Mining Laws, 30 U.S.C. § 21-54.

In any instance where more than one person, acting in “association” with another person, or more than one other person, to dredge on a federal unpatented placer mining claim is a “partnership”. Any valid unpatented placer mining claim owned by more than one individual is a form of “partnership“ amongst all co-owners.

General Comment # 19

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.

All waterways statewide are closed. Meaning, anyone even transporting a suction dredge is subject to citation, fine, or arrest. Even when hauling a suction dredge on any road, highway or freeway next to, or over any bridge crossing any waterway in California.

Such regulation is legally untenable, and manifestly unjust. As it prohibits the possession, movement, transport, or sale of all small scale suction gold mining dredges, almost statewide. This regulation is meant to destroy California commerce, as it will drive the manufactures of suction dredges in California, into bankruptcy.

Literature Review

Specific Comment # 1

2.4.1 General “…Much of the suction dredging occurs on private lands or unpatented claims owned by mining clubs; in some cases individual club members pay a fee to use the club’s claim, such as with the New 49ers (New 49ers 2009)…Many miners also own their own unpatented claims to which they have an exclusive right only to the locatable minerals under claim. ..”.

Material misrepresentation of fact.

The bulk of all small scale suction dredge gold mining in California occurs on unpatented, and patented mining claims situated statewide. Only a small percentage of all mining claims in California are owned by “”mining clubs”. The majority of mining claims in California are owned by private individuals.

Specific Comment # 2

4.3.2 Dredging Effects on Fish Spawning and Early Life Stages

“Overview: California has a number of threatened and critically endangered fish species that could be impacted by suction dredging. In particular, suction dredging may occur in the spawning habitat of many salmonid and non-salmonids species. As a result, dredging has potential to affect the population dynamics and ecology of the species in these watersheds (e.g., in terms of their survival and reproductive success). The following section provides a detailed discussion of these effects as they relate to the spawning and early life stages of California’s fish species (particularly salmonids).”

My comment:

DFG has never been able to identify a single incident in which a small scale suction dredge gold miner has ever injured, or killed a single fish or fish egg. Beyond the absence of any site-specific adverse effects whatsoever on listed species, the record is also clear that only De Miminus cumulative impact arises from the activity. In part this is because all traces of any particular summer’s activity primarily vanish during high winter, and spring run-off flows, which redistribute loose stream gravels in a highly dynamic fashion.

It appears Horizons, and DFG’s approach the issue by reference to vague and general factual allegations about “potential effects” of the activity of suction dredge mining in general, not tethered to any specific mining operation even in California. In particular, Horizon singles out the most highly-biased literature possible to include here, which in itself demonstrates bias.

The reality here, DGF ignores is that salmon are driven to spawn in order propagate the species. That instinct is so strong, it governs their life cycle. Salmon will overcome monumental natural obstacles, such as miles of savage white water rapids, and waterfalls, one after another they can leap to gain access to spawning sites. Any small scale suction dredge gold mining operation salmon might encounter are by their very nature, no impediment at all, for salmon to circumvent.

Specific Comment # 3

4.3.5 Dredging Effects on Wildlife and Habitat

My Comment:

By law, a mining claim owner has the right to use, and occupy the surface of his property, regardless of any effects it may have wildlife and habitat. So long as they are within the limits of prevailing law.

"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).

This possessory interest entitles the claimant to "the right to extract all minerals from the claim without paying royalties to the United States." Swanson v. Babbitt, 3 F.3d 1348, 1350 (9th Cir. 1993).

30 USC § 26. Locators’ rights of possession and enjoyment

The locators of all mining locations … situated on the public domain, …shall have the exclusive right of possession and enjoyment of all the surface included within the lines of their locations”.

Federal mining claims are "private property" Freese v. United States, 639 F.2d 754, 757, 226 Ct.Cl. 252 cert. denied, 454 U.S. 827, 102 S.Ct. 119, 70 L.Ed.2d 103 (1981); Oil Shale Corp. v. Morton, 370 F.Supp. 108, 124 (D.Colo. 1973).

Specific Comment # 4

4.4 Cultural Resources

My Comment:

By law, a mining claim owner has the right to use, and occupy the surface of his property, regardless of any effects it may have on cultural resources. So long as they are within the limits of prevailing law.

"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).

This possessory interest entitles the claimant to "the right to extract all minerals from the claim without paying royalties to the United States." Swanson v. Babbitt, 3 F.3d 1348, 1350 (9th Cir. 1993).

30 USC § 26. Locators’ rights of possession and enjoyment

The locators of all mining locations … situated on the public domain, …shall have the exclusive right of possession and enjoyment of all the surface included within the lines of their locations”.

Federal mining claims are "private property" Freese v. United States, 639 F.2d 754, 757, 226 Ct.Cl. 252 cert. denied, 454 U.S. 827, 102 S.Ct. 119, 70 L.Ed.2d 103 (1981); Oil Shale Corp. v. Morton, 370 F.Supp. 108, 124 (D.Colo. 1973).

Specific Comment # 6

Claims “…the majority of suction dredging takes place on unpatented placer claims…”.

My Comment:

DFG admission of material fact.

Specific Comment # 7

Economic Impacts of Suction Dredging on Local Economies

My Comment

Economic Impact of Suction Gold Dredging in California is Over $52 Million Per Year

by Scott Harn

Editor/Publisher

ICMJ’s Prospecting and Mining Journal

The Surveys.

An Environmental Impact Report on suction gold dredging was completed by the State of California in 1994. As part of this process, the State sent out two survey questionnaires. The first questionnaire was sent to over 4,000 individuals. Nearly 2,000 were returned completed. The surveys covered dredge locations, annual spending activity, amount invested in dredging equipment, nozzle size and related questions. The second survey was sent to county Boards of Supervisors, Chambers of Commerce and mining businesses to determine the importance of suction gold dredging on local economies. A sample of 1,257 of the individual surveys was used by the State to complete a statistical analysis.

The Results.

“Suction dredging is an activity that requires a substantial investment.” It was determined that each suction dredger spent approximately $9,250 per year on expenses related to suction dredging in 1994. This included motels, camp fees, food, gas, oil, equipment maintenance and repairs related to suction dredging. Suction gold dredgers are currently spending approximately $13,249 each per year when adjusted for inflation.

The expenditures cited above did not include the cost of the suction dredge and related equipment, which the survey found was approximately $6,000 in 1994, or $8,594 adjusted for inflation.

In 2008, 3,523 suction gold dredging permits were issued in California. Adjusted for inflation, the economic impact of suction gold dredging in 2008 was $46.68 million. If only one-fifth of permitted suction gold dredgers purchased a dredge during the year, another $6.06 million would have to be added to the above figures, making the total economic impact $52.74 million per year.

Conclusion

Suction dredge miners contribute substantially to the economy of California.

(Note: This estimate does not reflect the value of the recovered gold nor the expenditures of those who may be assisting or accompanying the miner, which could substantially increase the economic impact of suction dredge mining in the State.)

Sources

•California Department of Fish and Game. 1994. Final Environmental Impact Report, Adoption of Regulations for Suction Dredge Mining. April, 1994.

•United States Department of Labor Bureau of Labor Statistics. Consumer Price Index.

•California Department of Fish and Game, 2009. Licensing statistics, Special Permits. www.dfg.ca.gov/licensing/pdffiles/sp_items_10yr.pdf

Copyright ICMJ & CMJ, Inc. 2009. (Permission granted to link to this document by copying the web address above.)

Specific Comment # 8

4.7 Recreation

My Comment:

By law, a mining claim owner has the right to use, and occupy the surface of his property, regardless of any effects it may have on recreation. So long as they are within the limits of the law.

"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).

This possessory interest entitles the claimant to "the right to extract all minerals from the claim without paying royalties to the United States." Swanson v. Babbitt, 3 F.3d 1348, 1350 (9th Cir. 1993).

30 USC § 26. Locators’ rights of possession and enjoyment

The locators of all mining locations … situated on the public domain, …shall have the exclusive right of possession and enjoyment of all the surface included within the lines of their locations”.

Federal mining claims are "private property" Freese v. United States, 639 F.2d 754, 757, 226 Ct.Cl. 252 cert. denied, 454 U.S. 827, 102 S.Ct. 119, 70 L.Ed.2d 103 (1981); Oil Shale Corp. v. Morton, 370 F.Supp. 108, 124 (D.Colo. 1973).

Specific Comment # 9

4.8 Aesthetics

My Comment:

By law, a mining claim owner has the right to use, and occupy the surface of his property, regardless of any effects it may have on recreation. So long as they are within the limits of the law.

"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).

This possessory interest entitles the claimant to "the right to extract all minerals from the claim without paying royalties to the United States." Swanson v. Babbitt, 3 F.3d 1348, 1350 (9th Cir. 1993).

30 USC § 26. Locators’ rights of possession and enjoyment

The locators of all mining locations … situated on the public domain, …shall have the exclusive right of possession and enjoyment of all the surface included within the lines of their locations”.

Federal mining claims are "private property" Freese v. United States, 639 F.2d 754, 757, 226 Ct.Cl. 252 cert. denied, 454 U.S. 827, 102 S.Ct. 119, 70 L.Ed.2d 103 (1981); Oil Shale Corp. v. Morton, 370 F.Supp. 108, 124 (D.Colo. 1973).

Specific Comment # 10

4.10 Noise

My Comment:

By law, a mining claim owner has the right to use, and occupy the surface of his property, regardless of any noise. So long as any such noise is within the limits of the law.

"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).

This possessory interest entitles the claimant to "the right to extract all minerals from the claim without paying royalties to the United States." Swanson v. Babbitt, 3 F.3d 1348, 1350 (9th Cir. 1993).

30 USC § 26. Locators’ rights of possession and enjoyment

The locators of all mining locations … situated on the public domain, …shall have the exclusive right of possession and enjoyment of all the surface included within the lines of their locations”.

Federal mining claims are "private property" Freese v. United States, 639 F.2d 754, 757, 226 Ct.Cl. 252 cert. denied, 454 U.S. 827, 102 S.Ct. 119, 70 L.Ed.2d 103 (1981); Oil Shale Corp. v. Morton, 370 F.Supp. 108, 124 (D.Colo. 1973).

Initial Study Suction Dredge Permitting Program Subsequent Environmental Impact Report (Prepared by Horizon Water and Environment, November 2009 Project No. 09.005)

Specific Comment # 11

4. Program Description 4.1 Applicability

That the Department’s regulatory authority under Fish and Game Code section 5653 et seq. is limited to instream suction dredge mining is also underscored by legislative history. Fish and Game Code section 5653, for example, derives from former Fish and Game Code section 5653. (See former Fish & G. Code, § 5653, added by Stats. 1961, ch. 1816, § 1 (SB 1459 (Arnold).) Legislative history materials related to this former section specifically casts the Department’s related regulatory authority in terms of instream mining.

My Comment:

DFG admission of material fact that it’s authority is “limited to “In“-stream “ only.

Specific Comment # 10

4.3 Description of Updated Regulations

In developing any proposed updates to the existing regulations the Department is guided by, among other things, the definition of “fish” set forth in the Fish and Game Code. Section 45 of the Code defines fish to mean wild fish, mollusks, crustaceans, invertebrates, or amphibians, including any part, spawn, or ova thereof. Similarly, the Department is guided by the common sense plain meaning of the word deleterious such that deleterious effect generally means a wide-ranging or long-lasting consequence for a fish population that extends beyond the temporal or spatial context of a specific direct impact. Such deleterious effects could;

(1) Catch, capture, kill, or injure a species listed as candidate, threatened or endangered under the state or federal Endangered Species Act; (2) A substantial reduction in the range of any species, and/or extirpation of a population; (3) A fundamental change to the structure of a community or stream ecosystem, including substantial reductions in biodiversity or resiliency to disturbance, resulting in the reasonably foreseeable consequence of (1) or (2) above.

My Comment

As such, DFG makes the issuance of all sports, and commercial fishing licenses statewide, unlawful.

Specific Comment # 11

5.4 Equipment 5.4.1 General

“Suction dredges are generally driven by either a gasoline or diesel engine that runs a centrifugal pump.“

My Comment

Less than 1/4 of 1 percent of all small scale suction dredges used in California are powered by “diesel” engines. DFG’s statement here is misleading, inferring a far higher percentage of diesel powered small scale suction dredges are used, than exist.

Specific Comment # 12

5.5.8 Location

“Many miners also own their own unpatented claims to which they have an exclusive right only to the locatable minerals under claim.”. Duration; A recreational suction dredger (representing 90 percent of all suction dredgers) may spend a total of four to eight hours per day in the water dredging an area from 1 to 10 square meters.

My Comment

Valid mining claim owners also have the vested property right to use--occupy any--all of the surface of their mining claims for mining purposes, and those things reasonably incident thereto.

I object, and protest the intentional material misrepresentation of fact by DFG that; “...recreational suction dredger (representing 90 percent of all suction dredgers) …“.

Small scale suction dredge gold mining is a completely legal occupation. With profit motivation, just as any other small business has. In which considerable investment is often made in both equipment, a mining claim, or multiple mining claims are acquired to pursue that occupation. Given that fact, it is false to assert 90% of all small scale suction dredge gold mining is “Recreational”.

Specific Comment # 13

5.5.10 Encampments

My Comment

Valid mining claim owners have the vested property right to use--occupy any--all of the surface of their mining claims for mining purposes, and those things reasonably incident thereto. Consequently, they have the right (not a mere privilege) to occupy their property, in the pursuit of their mining activity. As well as the right to protect that property, and their equipment from vandalism.

Specific Comment # 14

6.2 Baseline Conditions Under CEQA, the environmental setting or “baseline” serves as a gauge to assess changes to existing physical conditions that will occur as a result of a proposed project. CEQA Guidelines section 15125 provides that, for purposes of an EIR, the environmental setting is normally the existing physical conditions in and around the vicinity of the proposed project as those conditions exist at the time the Notice of Preparation is published. As underscored by appellate case law, however, the appropriate environmental baseline for a given project may be different in certain circumstances in order to provide meaningful review and disclosure of the environmental impacts that will actually occur with the proposed project. In the present case, the Department has determined that a conservative approach to identifying the environmental baseline is appropriate.

As described above, instream suction dredge mining is currently prohibited in California pursuant to a recently enacted state law. (Fish & G. Code, 5653.1, added by Stats. 2009, ch. 62, § 1 (SB 670 (Wiggins).) The same law and a related court order also prohibit the Department from issuing new suction dredge permits. The Department has determined, as a result, that the appropriate environmental baseline for purposes of CEQA and the analysis set forth below is one that assumes no suction dredging in California. This Initial Study and the SEIR will, as a result, provide a “fresh look” at the impacts of suction dredge mining on the environment generally.

My Comment

DFG’s position that; “…The Department has determined, as a result, that the appropriate environmental baseline for purposes of CEQA and the analysis set forth below is one that assumes no suction dredging in California. This Initial Study and the SEIR will, as a result, provide a “fresh look” at the impacts of suction dredge mining on the environment generally…”, is preposterous, and utterly absurd.

Under the imposition of that manifestly bizarre, and illegal DFG environmental baseline, all human habitation, agriculture, manufacturing, commerce, transportation, and power generation. As well as all else involved that serves as the fundamental infrastructure of all civilized societies needs, would be “deleterious” to the environment of California.

The imposition, and enforcement of such a utterly preposterous environmental baseline standard flies in the face, is contrary to, and directly collides with not only CEQA guidelines, statutes, and regulation. But, profoundly conflicts with multiple U.S. and State Constitutional provisions protecting the ownership, and use of private property. As well as numerous statutes, and all common law provisions, protecting private property rights of individuals, and all other entities in California.

The 1994 DFG suction dredging EIR, by law sets the environmental baseline here, and this subsequent EIR must be “tiered” to the initial 1994 EIR. The 1994 EIR noted many positive effects of suction dredge mining It concluded that adoption of the California regulations “will reduce . . . effects to the environment to less than significant levels and no deleterious effects on fish”

DFG’s determination that such a preposterous standard is applicable here, clearly demonstrates official malfeasance. It also unmistakably demonstrates the authors (Horizon Water & Environmental) of this study report are profoundly biased towards small scale suction dredge gold mining.

It is apparent to at least all mining claim owners, and small scale suction dredge gold miners effected by SB 670 that Horizon Water & Environmental has prejudicially tailored this study report to paint a picture to the public that small scale suction dredge gold mining is utterly, and irreconcilably environmentally degrading to the point it must not be allowed to occur in any form in California.

CEQA Section 15384. Substantial Evidence

(B) Substantial evidence shall include facts, reasonable assumptions predicated upon facts, and expert opinion supported by facts….”

Throughout the literature review, and initial study report both DGF, and Horizon Water & Environmental have consistently used grammatical devices such as qualifiers, and subjective terms, to introduce numerous written inferences into this CEQA proceeding which are far beyond the proof of the cited works. This use of “weasel” words time and time again throughout this initial study create an impression that something specific and meaningful has been said, which is far beyond the evidentiary facts.

It is clear to anyone well schooled in these matters that, both DGF, and Horizon Water & Environmental have prejudicially injected mere argument, harangue, bias, hypothesized speculation, unfounded opinion, narrative, and insupportable conclusions here. All of which are clearly erroneous, inaccurate, or not supported by substantial evidence.

Such intentional malfeasance by DGF, as the lead Agency in this CEQA proceeding, is so blatantly prejudicial, to all mining claim owners, and small scale suction gold mining dredge operators involved. That it is irreconcilable DFG, as the lead Agency here cannot act impartially. Nor legally complete this CEQA proceeding without incurring what eventually will probably result in near a one billion dollar ($1,000,000,000) liability to the states coffers from compensable “takings” they arbitrarily cause.

Specific Comment # 14

6.3 Thresholds of Significance Thresholds of significance serve as a measure under CEQA to gauge the significance of changes to the environmental baseline that will result with approval and implementation of a proposed project. For purposes of this Initial Study, the Department is using Appendix G of the CEQA Guidelines, enhanced with climate change considerations, as its thresholds of significance. These thresholds may be refined for purposes of the draft SEIR, but for now the Department has determined that Appendix G in the CEQA Guidelines along with the climate change topic provides appropriate thresholds in order to make an initial assessment of the potentially significant impacts associated with the Proposed Program that should be analyzed in detail in the draft SEIR.

My Comment

The determination of whether a project may have a significant effect on the environment calls for careful judgment on the part of the lead agency involved, based to the extent possible on scientific and factual data.

Legal facts:

1. Small scale suction dredge gold mining is categorically exempt from CEQA requirements under provisions of Title 14. California Code of Regulations

Chapter 3. Guidelines for Implementation of the California Environmental Quality Act, Article 19. Categorical Exemptions, 15300. Categorical Exemptions; 15304. Minor Alterations to Land. Class 4 consists of minor public or private alterations in the condition of land, water, and/or vegetation which do not involve removal of healthy, mature, scenic trees except for forestry or agricultural purposes.

2. Small scale suction dredge gold mining is also categorically exempt from CEQA requirements under provisions of California Surface Mining and Reclamation Act of 1975. Public Resources Code § 2714 (d) & (e).

2714 (d) 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.

2714 (e) Surface mining operations that are required by federal law in order to protect a mining claim, if those operations are conducted solely for that purpose.

Factual project area data:

California contains far more than one hundred million (100,000,000) square acres. Within that massive geografical area, excluding coastal shorelines, there are about two hundred, eleven thousand, five hundred (211,500) miles of streams, and rivers.

Using the average number of small scale suction dredge gold mining permits issued annually in California, over the last decade. That would equate to a about single dredge permit being issued for each seventy (70) mile long stretch of waterways, and thirty one thousand, two hundred fifty (31,250) square acres of land in California.

Certainly, small scale suction dredge gold mining may be more concentrated in various placer gold bearing regions of California. Regardless, on a statewide basis, as this CEQA study is. Taking into account, small scale suction dredge gold mining is a sporadic, seasonal, widely spread out occurrence. Which is equivalent to, creditably no more significant than residential landscaping, gardening, rototilling, lawn mowing, motorized boating, etc.

Combined with the mean average of all existing unbiased factually straight forward peer reviewed scientific studies on small scale suction dredge gold mining, both pro, and con. The result is the “Threshold of Significance” is well established by legal categorical exclusion, or exemption, and numerous factual scientific study reports that the effects of small scale suction dredge gold mining throughout California is so negligible, or de minimus as to be perfectly in concert with existing 1994 EIR, as well as the pre-SB 670 DFG suction dredge regulations.

CEQA mandates the 2009 literature review, initial study report, and all else involved here, must be tiered to the 1994 EIR. Given those facts, with only one exception, DFG cannot go beyond that established “Threshold of Significance”. That one exception being, the “listing” of Coho salmon as threatened, and/and endangered under ESA, and CESA. Coho salmon habitat in California exists only in the drainages of the Klamath, Salmon, and Scott rivers.

DFG is also legally required to note, CESA has not implemented standards of land use planning to protect Coho salmon that preclude human occupation, settlement, agriculture, commerce, or any other existing land use, including logging, surface mining, and small scale suction dredge gold mining in the region. As doing so, would create profound immediate regional economic disaster in northern California. Neither DFG, or CEQA can legally do so now, without effecting somewhere near a billion or more dollars in financial liability to the state.

Specific Comment # 15

7.2 Scoping Meetings

My Comment

At considerable personal expense, I personally attended the Sacramento so-called “scoping meeting”. Instead of a legitimate scoping meeting, under applicable APA provisions . What occurred was a tightly controlled ‘workshop”, where DFG, and Horizon Water And Environmental set an agenda that precluded open discussion, legitimate comments, or discourse. DFG, and Horizon Water and Environmental would not allow individuals to speak publicly to the audience.

DFG ignored pertinent “comments”, as they chose to only answer the ones they themselves gleamed out as easy to answer. These workshops were a waste of time, effort, and cost to all involved. As hey served no constructive purpose above that of a highly regimented bureaucratic dog and pony show. Obviously in some feeble way meant to add some degree of legitimacy to DFG actions here. Which, backfired in the sense the majority of attendee’s were offended by DFG’s position, and actions there.

Specific Comment # 16

Environmental Checklist

Mineral Resources “not checked”

My Comment

The Chief Deputy Director of CDFG has made a knowingly deliberate, and utterly false official omission of material fact 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, 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 throughout California.

Clearly, that is in itself 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, purchase, or initiate a mining claim, 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 DFG, 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.

DFG has no statutory authority over “mineral resources’ within California.

No one can rationally refute that ‘mining claims” involve ‘mineral resources”, and their extraction. No one can credibly refute the majority of all suction dredge gold mining in California takes place on mining claims where valuable mineral resources exist.

The protection of mineral resources in California is the responsibility of the following agencies. Which either have statutory authority or are Responsible Agencies under CEQA:

1. California Department of Conservation is the primary agency with regard to mineral resource protection.

The Department is charged with conserving earth resources (Public Resources Code Sections 600-690)

2. State Mining and Geology Board, which develops policy direction regarding the development and conservation of mineral resources and reclamation of mined lands.

DFG lacks statutory authority over California‘s “mineral resources”. Which negates their ability to make rulings governing, permitting, or prohibiting their extraction.

Furthermore, the site, or legal description of a CEQA project must be accurately identified within an EIR. Given, this EIR is “statewide”. It is therefore incumbent on the lead agency to identify with certain specificity each individual site, all individual property, including each mining claim where “Mineral Resources“ exist. As well as include that data in order to compile the effects on “Mineral Resources“ , this CEQA project will cause.

Given that provisions of CEQA mandate SMARA participation in a CEQA project, if “Mineral Resources“ are involved. That being true here, another set of governing standards must be included within this CEQA process.

Take notice, as a direct result of the Chief Deputy Director of DFG knowingly, and deliberately omitting a profound material fact here. Both the Literature Review, and Initial Study Report must be rewritten to include all aspects of “Mineral Resources” this CEQA process covers.

Otherwise it is fundamentally flawed from the onset, and any result, or determination made within it is illegitimate, and contrary to various provisions of multiple California laws.

Specific Comment # 17

Land Use Planning “not checked”

My comment

The Chief Deputy Director of CDFG has again made a knowingly deliberate, and utterly false official omission of material fact here, by not checking the checklist “Land Use Planning” box in this official CEQA initial study report.

Indisputably, every inch of California, in one way or another is covered by one, or multiples of overlapping land use plans, promulgated by all entities, counties, or state, and federal agencies that have legal authority to do so. In California, mine reclamation is regulated at the county level, subject to oversight by the State Mining and Geology Board. Forty five percent (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 almost all small scale suction dredge gold mining takes place.

A CEQA lead agency must officially consult with, coordinate, and document its efforts with major land planning agency decision makers statewide. For instance, by intentional omission, or gross error, neither the Literature Review, or Initial Study Report included or discussed a single existing memoranda of understanding (MOUs) of the many that exist between the BLM and state agencies and the Forest Service and state agencies which establish the links between state environmental regulatory requirements and federal land manager decisions under CFR 228, and 3809 regulations.

This includes all existing MOUs, or similar corresponding agreements of any sort between the State Water Quality Control Board, as well as all Regional Water Quality Control Board with various federal agencies involved with the planning, or use of water statewide.

Some existing MOUs involve the state and a single federal land management agency; others are signed by representatives of the state, BLM, and the Forest Service, or other federal agencies. Some MOUs address only a single issue, whereas others deal with a broad range of management considerations.

These MOUs frequently indicate whether the federal agency will defer to state decisions, make independent decisions, or share decision-making authority, as well as define how inspection and enforcement, and monitoring will be handled. These MOUs are critically important, as they seek to avoid duplication, and conflict while recognizing the sometimes divergent interests of federal and state regulators.

All USFS and BLM lands are under one form or another of Federal “Land Use Planning”. Which encourages, provides for, allows, and neither the USFS or BLM can prohibit permitted mining on applicable federal lands. Consequently, under CEQA mandates, DFG as the lead agency in this CEQA process must invite, “consult” with, and allow those agencies to actively participate in this CEQA process. Otherwise, it is fundamentally, and fatally flawed from the onset.

Take notice, as a direct result of the Chief Deputy Director of DFG knowingly, and deliberately omitting profound material facts here. Both the Literature Review, and Initial Study Report must be rewritten to include all aspects of “Land Use Planning”, “Mineral Resources” and “Water Quality” (MOUs) issues statewide that this CEQA process covers.

Then, reissued, re-circulated, with an additional written comment period provided under APA guidelines, so that all involved, after receiving those corrected, or supplemented documents are allowed to submit comments. Otherwise this CEQA process is fatally flawed from this monument forward, and any result, or determination made within it is illegitimate, and contrary to various provisions of multiple California, and federal laws.

Specific Comment # 18

UNCONSTITUTIONAL REGULATORY “TAKING” EFFECTED BY DFG

With regard to “suction dredge gold mining”, on all mining claims in California subject to this CEQA process, there are no feasible mitigating “alternatives”. Other than additional onerous restrictions, and seasonal, or permanent waterway closures. To “protect” California water quality, or indigenous fish from the effects of small scale suction dredge gold mining statewide. Any type closure, seasonal, or permanent beyond pre-SB 670 DFG regulation would effect regulatory “takings” of private property interests or rights held by all affected mining claim owners throughout California.

Any seasonal restriction that closes a given area (where mining claims are situated), for example eleven (11) months of the year, “takes” the owners property right for that eleven (11) month period, effecting an annual “temporary” “taking” of very significant duration, and proportion. Temporary “takings” of private property of this nature would generally be considered “compensable”, as they “take” all economic benefit for a significant period of time. Additional permanent closures of any area where any mining claims are situated, would effect a complete “taking” of all economic benefit a mining claim owner has. As he owns nothing more than the right to mine his property. Thus, rendering his property valueless.

Given the cash value of all mining claims in California, this CEQA study effects exceeds of one billion dollars ($1,000,000,000). The law requires DFG not proceed further unless supported by a California Attorney Generals written legal opinion, how to proceed in the face operating under mutually incompatibles statutory directives, and formally effecting such unlawful “takings”.

Alternatively, DFG is required by law to immediately notify the State Legislature of the “takings” aspects DFG as the lead Agency in this CEQA project, would effect. Requesting the Legislative fund, and post a cash “Bond” in the amount of one billion dollars ($1,000,000,000) to cover those financial liabilities, DFG incurs, by effecting a compensable “taking” of private property of this magnitude.

NOTE:

There is no need for me to submit further comments on the “ Discussion of Impacts” phase of the “Environmental Checklist”, as those comments I have already included above more than adequately address those aspects.

Comments Summation

CEQA Section 15093 requires that the agency make a statement of overriding considerations, supported by substantial evidence on the record, where the decision maker approves a project notwithstanding the fact that the significant impact identified in the EIR cannot be avoided or substantially reduced through adoption of mitigation or an alternative, “if the specific economic, legal, social, technological, or other benefits of the proposed project outweigh the unavoidable adverse environmental effects.” An agency may not directly make the statement of overriding considerations without first making the required set of findings specified in Section 15091.

Given the series of written “comments” I have officially submitted here. Which serve as both “actual” and “constructive” notice to DFG. All of which must be included in this CEQA formal record, acted upon, and answered. The most prudent course of action for DFG to take now. Is to halt expenditure of funds allocated for this CEQA project. Until such time, as DFG is on a sound legal footing to proceed.

Or, alternatively make a “finding” that small scale suction dredge gold mining is “exempt” from this CEQA process, by any number of applicable statutory directives included in my comments here, that make that so. Then forward the same to the Legislature, to act upon.

Or, alternatively make a CEQA “finding” that economic, legal, or other considerations DFG now has legal “Notice” of, render infeasible the mitigation of alternatives that would be identified in the EIR, if completed.

Sincerely,

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When an unconstitutional regulatory taking of private property, and/or vested property rights occurs.

The first thing anyone suffering from such an occurrence must do.

Is send a demand for compensation to the head of the government agency that caused the “taking”.

Don’t expect to get paid. What you have done by demanding compensation.

Is to exhaust all available administrative remedies.

Making the matter ripe for a court action seeking just compensation.

SB 670 was signed into law by the Honorable Governor of California, Arnold Schwarzenegger, that became effective August 6th, 2009.

As such the, the Governor is the person to send a demand for payment to.

I will attempt to work up a >fill in the blanks< type form letter that any one can cut/paste into a word processor, to finalize. By simply filling in the blanks, sign & mail it off.

I would think, hundreds, possibly thousands of “SB 670 Demands for Payment” hitting the Governors desk might open his eyes, that something wrong is going on here.

He might even do something about it.

I just sent a “demand for payment” to DFG. LOL

What think you all?

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ANOTHER ONE OF MINE:

Senator Mimi Walters (Chair)

Senator Alan Lowenthal (Vice-Chair)

Senate Ethics Committee

State Capitol, Room 3082

Sacramento, CA 95814

Assemblyman Bill Emmerson

Assemblyman Paul Krekorian

Co-Chairman, Assembly Legislative Ethics

State Capitol

Sacramento, CA 95814

December 7, 2009

RE: ETHICS COMPLAINT

Dear Ethics Committee members,

Please consider this a formal ethics complaint against Senators Wiggins, and Wolk, Assembly Members Huffman, Evans and Jones. Mac Taylor, Legislative Analyst. As well as all members of those committees that effectuated SB 670.

The aforesaid persons are the primary authors, and proponents of SB 670. A recent law now in effect that prohibits the possession and use of any small scale gold mining suction dredge within one hundred (100) yards of any California waterway until various contingencies of SB 670 are completed.

The aforesaid persons knowingly conspired together to perorate a gross fraud upon the Governor, the complete legislative body, and the people of California. Resulting in irreconcilable annual economic damage in the area of one hundred million dollars ($100,000,000). As well as a potential financial liability to state coffers that may amount to one billion dollars ($1,000,000,000) as compensation for unconstitutional private property, and vested rights “takings“ SB 670 immediately effectuated.

While I applaud any law that would legitimately safeguard the natural environment of California. The aforesaid proponents of SB 670 willfully conspired together to quickly usher it through the legislative process, unlawfully omitting material facts, and intentionally misrepresenting others. The result being, an effective perpetration of fraud upon the whole legislature. Who, having the true facts hidden from them, unwittingly passed SB 670 into law.

The material facts that were unlawfully hidden from the legislature are as follows;

1. Small scale suction dredge gold mining primarily takes place on about fifty thousand (50,000) unpatented, and patented fee simple “mining claims” throughout California. Both of which by California statutory law are “real” and “taxable” private property.

SB 670 prohibits all beneficial use of those mining claims, effecting an unconstitutional compensable regulatory “taking”. For which the state will be held liable.

2. Small scale suction dredge gold mining is the only environmentally friendly practical means by which most placer mining claims in California can be profitably mined.

3. One of the SB 670 contingencies is that a court ordered environmental impact report be completed covering the Klamath, Salmon, and Scott rivers, not statewide.

Yet, SB 670 profit’s the use of small scale suction dredges statewide.

4. Pre-SB 670 suction dredge regulations were derived from a California Environmental Quality Act (CEQA) environmental impact report (EIR). No new significant peer reviewed scientific environmental impact studies covering small scale suction dredge gold mining exist since the 1994 CEQA EIR. That provide any new substantial scientific evidence that small scale suction dredge gold mining impacts has more the a negligible, or de minimus effect on fish or water quality.

5. One million five hundred thousand dollars ($1,500,000) of state funds were allocated for a new CEQA EIR. Yet, according to the California Department of Fish & Game, no new scientific small scale suction dredge testing will be performed under the new CEQA study. Which makes it nothing more that a $1.5 million dollar boondoggle.

6. JOINT RULES: Citizen Cost Impact Report 37.1. The citizen cost impact analyses shall include those economic effects that the Legislative Analyst deems significant and that he or she believes will result directly from the proposed legislation. Insofar as feasible, the economic effects considered by the Legislative Analyst shall include, but not be limited to, the following: (a) The economic effect on the public generally. (B ) Any specific economic effect on persons or businesses in the case of legislation that is regulatory.

SB 670 is certainly regulatory, has an annual economic effect near 100 million dollars, and may result in a one billion dollar liability to the state. Yet, no such economic legislative report exists. Caused by SB 670 proponents fraudulently omitting material facts, to intentionally subvert the legislature into believing SB 670 economic effects were insignificant.

7. Mining prohibitions effected by SB 670 are clearly preempted by federal law governing small scale suction dredge mining on federal public domain lands. Which comprise forty five percent (45%) of California.

8. SB 670 prohibits small scale suction dredging statewide, until various contingencies of it are met. However, The Surface Mining and Reclamation Act (SMARA) Public Resources Code (PRC) Section 2710 et seq., at Section 2714(d) expressly EXEMPTS “Prospecting for, or the extraction of, minerals for commercial purposes and the removal of overburden in total amounts of less than 1,000 cubic yards in any one acre or less.”

9. Small scale suction dredge gold mining is also categorically exempt from permitting under section Public Resource Code Section 15304. Minor Alterations to Land. Class 4 exemptions consists of minor public or private alterations in the condition of land, water, and/or vegetation which do not involve removal of healthy, mature, scenic trees except for forestry or agricultural purposes.

Given that two distinct senior California statutes clearly exempt small scale suction dredge gold mining from CEQA permitting, while SB 670 provisions prohibit it. A clear incompatible statutory conflict in law exists. Which, until clarified, subjects small scale suction dredge miners to criminal citation, fine, and/or arrest on one hand, and not, on the other.

10. SB 670 prohibits possession of a suction dredge within one hundred yards of any California waterway. Thereby making it impossible, for all practical purposes to transport a suction dredge statewide, without the owner becoming subject to citation, fine and/or arrest. This statute unlawfully abrogates both suction dredge owners, and suction dredge manufactures constitutionally guaranteed right of free movement within California, and for purposes of interstate commerce.

11. SB 670 unlawfully cancelled all suction dredge permits statewide, without provision for refund. The term “vested mining right” includes both a right established by use, as well as a right established by permit. (See; TransOceanic Oil Corporation v. Santa Barbara (1948) 85 Cal.App.2d 776; Avco Community Developers, Inc. v. South Coast Regional Comm’n. (1976) 17 Cal.3d 785, 790 [a permit becomes a vested property right where the permittee has incurred substantial liabilities and performed substantial work in reliance on the permit]; Goat Hill Tavern v. City of Costa Mesa (1992) 6 Cal.App.4th 1519; Hansen Bros. Enterprises v. Board of Supervisors of Nevada County (1996) 12 Cal.4th 533 (“Hansen”).)

12. SB 670 proponents knew full well beforehand, if passed into law. SB 670 provisions unlawfully prohibited all owners of mining claims situated over California waterways beneficial use of “riparian” water rights they own.

13. SB 670 proponents materially misrepresented facts that small scale suction dredge gold mining is primarily “recreational”. When in fact, it is a completely legal small business occupation. Which requires considerable investment, and is profitable. Which thousands derived either their full, or supplemental income from. SB 670 unlawfully immediately deprived all those it effected of that income. When, in these trying times, it is sorely needed.

14. SB 670 proponents materially misrepresented facts its prohibitions, would not cause unconstitutional compensable regulatory “taking” of private property rights of thousands it effected.

15. SB 670 proponents assert its prohibitions are “temporary”. But in fact, the CEQA study it imposes is so fraught with regulatory hurdles, conflicts of interest, incompatible conflicting statutory law, and other legal hurdles (federal preemption). That it may never be completed.

16. SB 670 proponents intentionally omitted this paramount fact. The California Statehood Admission Act (Sec. 3) expressly provides; “…said State of California is admitted into the Union upon the express condition that the people of said State, through their legislature or otherwise, shall never interfere with the primary disposal of the public lands within its limits, and shall pass no law and do no act whereby the title of the United States to, and right to dispose of, the same shall be impaired or questioned…”.

Indisputably, the state of California, it’s legislature, and all state regulatory agencies are expressly barred from impairing, or even questioning federal mining claim owners vested right to mine, and their private property rights held under federal law. Certainly, the state can “reasonably” “regulate” small scale suction dredge gold mining. But cannot make that regulation so onerous as to arbitrarily prohibit mining, even temporarily, without incurring monumental financial liability.

17. SB 670 was passed as an “urgency” measure, by legislative finding, unlawfully perpetrated by SB 670 proponents. Where neither significant, nor substantial evidence exists to support that “finding”.

Every fact here is fully supported by substantial unequivocally clear evidence, statutory, and complete case law. I did not include it, because my intend was to keep this short, succinct, and in plain language, that is easy to assimilate, comprehend and understand. But, if necessary, would gladly provide you any evidence, law or whatever else you might want, to verify these facts.

In effect, what occurred here is that, the aforesaid proponents of SB 670 knowingly, willfully, with absolute malice of forethought skillfully perpetrated an unlawful scheme in order to gain passage of SB 670 into law. Which, now unlawfully horribly victimizes all those it effects. As well as creates monumental future financial liability to the state of California.

I would think, as a legislative member yourself, once aware of the true facts, as revealed to you here. I would be outraged, some amongst you would think you were so blind, ignorant, or unintelligent, you would not become aware of their scheme.

You now have constructive, and actual notice of the true facts, SB 670 proponents materially misrepresented to you. Please, proceed as expeditiously as possible to rectify this wrong, as well as sanction those who unlawfully perpetrated it.

Sincerely,

_______________________

CC: Governor Arnold Schwarzenegger

President pro Tempore, California State Senate, Darrell Steinberg

Speaker of the Assembly, Karen Bass

http://www.aroundthecapitol.com/Bills/SB_670

NOTE, I think the Dec 7th date fits

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The SB 670 CEQA process is governed by APA. Which mandates public notice, and comment periods before any new regulations are implemented. In effect DGF has to tell the public the why, what & where they are going to impose new suction dredge regulations. Assuming DFG will impose some new stream, river, or whole drainage closures. In that any new year around closure would “take” all beneficial use of any valid placer mining claim that was only amenable to being mined by suction dredging. Ultimately, those mining claim owners effected by such a complete “taking” of all economically viable use of their private property rights. They would be due “compensation” for the value taken from them. Certainly, to collect compensation, various administrative, and judicial hurdles must be jumped. But, it’s there for those who have the ability to do just that.

SB 670 is an arbitrary law, that affects thousands of small scale miners in California. It was imposed ignoring the financial effect, hardship and loss it placed on all those it effected. In other words, if they knew what they were doing, the California legislature just didn’t care. If they honestly were ignorant of the facts, that SB 670 imposed “takings” of thousands of peoples private property rights. That the state could be held liable to ultimately pay for. By their very oath of office, those elected state officials have a “fiduciary duty” to know such things. As certainly, crafting, and passing law when you don’t know the effects it imposes, is arbitrary, capricious , and just plain stupid. Every human must in one way or another pay for their “stupid” mistakes. In this case, since it is the whole legislative body, the state becomes liable to pay for the ‘stupid” mistakes the legislature makes.

Frankly, on federal public domain lands where no placer gold exists. DFG can close every single waterway there to suction dredge gold mining. But where enough placer gold does exist on federal public domain lands, to support “valid” placer mining claim, I do care. Because any or all such closures DFG makes arbitrarily tramples on, and takes every placer mining claim owners private property rights there. So, in pondering all this, I thought to myself, CA & CA DFG want to play dirty, so can we. In that DFG is bound by law, to accurately describe the “what & where” of any new waterway closure they make, long before it goes into effect. That leaves a “window” of opportunity for anyone able to stake up all of any open federal public domain lands on gold bearing waterways before DGF closure regulations are implemented.

DOES ANYONE OUT THERE GET THAT PICTURE?

In this computerized day & age, it would be an easy quick task to determine who already has placer claims there, and what ground is not covered in any particular waterway drainage DFG proposes to close. Just a few dedicated knowledgeable men, with a diligent effort could insure every single inch of open ground was also staked up . With that mining claim ID BLM serial #, local, and ownership data base in hand . It would also be a relatively easy task to formulate those claims mean average value, and present that data to DFG before they implement closure” regulations. DFG cannot legally ignore something like that, when it lands in their lap, like a hot potato. But, say they do ignore it, as that is most likely, given their stance anyway. So, they go ahead and impose the “closure” regulations, knowing full well the unlawful “takings” it effects, and to whom.

Knowing the facts beforehand, they did it to themselves. So, the state of California becomes liable. Next step, send the Governor, and DFG a bill. Which they would also probably ignore. But, in doing so, the involved victims demanding compensation, have exhausted all administrative remedies. The next step, sue the state in a class action suit. Where, without doubt plaintiffs (that’s us) would prevail. Now you might think of the attorney fees, and costs involved. Given the dollar amounts of the mining claim, and gold values involved the suit would be for many (many, many) millions of dollars. In that it is a SURE winner. Without doubt, a well established competent law firm would take such a case on a contingency basis. In that CA & DFG acted arbitrarily, the court would also probably assess plaintiffs costs & attorneys fees to the state, as well. So, the compensation package, would not be diminished, or eaten alive by attorney fees.

So, if CA & DFG wants to “take” our private property rights. I for one am going to insure they pay the maximum amount possible, for every inch of any new federal public domain placer gold bearing waterway DFG closes. You can take that as written in stone, and that stone will eventually drop in CA & DFG’s lap. In a manner they will not enjoy, I assure you.

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WOW I have been reading you post with GREAT interest. Earlier this year I purchased a brand new 5" dredge from GDBW in Idaho Alan Trees. I joined the GPAA and headed out with my wife/son to Italian Bar to camp/dredge DFG charged us like $192 for an out of state permit (my son is Deaf so I fought them for 3 hours to grant him exempt for the permit they endend up charging him for the permit and I was free to assist him the permit is in his name so California has stolen $192 from a Deaf 17 year old Texas young man...call the local papers should make some news). We had an excellent time and found some good gold. I got back home and saw an 80 acre claim for sale above Mi-Wok village on the South Fork of the Stanislaus River on ebay on the fourth of July and won it for a Johnny Cash "SONG". I headend back up there the first week of August (all by myself this time) and met my Pop up there and we started working our new 80 acre claim. Two and half days in and almost a half ounce later the DFG came down to our claim and he told us people have been callin his boss complaining about us dredging. It was the same day that Bennedick Arnold signed the ban into LAW :-(. Geez those tree huggars work fast. He told us to get the dredge out of the water or we faced $1000 find and 6 months in jail. My Pa being the legit of the pair told me to comply. The Sheriff of Tomulame County showed up soon there after and was beside himself when we told our story. He was so mad he told us to go piss in the river as it flowed to San Fran. Well looking back I should have got his card placed the dredge back into the water and if the DFG showed back up call the sheriff out and have him run the DFG off our claim. What are your thoughts on that? Does the Sheriff have more power than the DFG? (Nothing would be more cool than to see the Sheriff protect us from the DFG at gun point!!) Thanks for all your post they really do make me feel like there is still hope I might be able to get back on my new claim in the future. Oh I also filed a compaint with the Texas DA about California no giving us our money back for the permit. I have not heard back yet on it. I have a nephew that lives in Klamath Falls Oregon and he is working on finding us a claim up there as I type.

Cheers and Merry X-mass Y'ALL from Texas,

nocureforthefever

Here is the headline for the news:

SB 670 California Legislators/GOV. Arnold Revolk Permit for Disabled Profoundly Deaf Texas Boy to Dredge for Gold on his Federal Mining Claim in Tuolumne County, California.

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Guest bedrock bob

Are there exemptions in the California dredging laws for deaf people? For handicapped? I know that handicapped hunters in New Mexico have some special rules that alow them to use vehicles off road, etc.etc. but they stil have to have a hunting licence...The fact that they are handicapped does not preclude them form needing a licence.

Tell me because I do not know...Is the dredging permit for each person on the dredge, or is it simply one permit for each dredge and the "crew" can all work under the same permit?

Bob

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1 dredge 1 operator on the nozzle is the rule of thumb.

We have 2 six inch prolines & a couple smaller ones.

One man cannot operate a 6 inch dredge alone, to be safe at least.

But, its never been an issue & 1 dredge permit per dredge sufficed.

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Guest bedrock bob

It sounds like all you needed was one dredge permit to be legal then? And you had a dredge permit and they made your deaf son get one too? Or did you not have a dredge permit at all and was holding out for a free one based on the fact that your son was deaf?

No quarrel here, but I smell something fishy. If he was deaf and you had have applied in the correct way for a permit I would bet that it would have been free to him. It sounds like you were in the river and a DGF fellow wanted to see a permit. When you couldnt produce one he made you buy one. Then you wanted it for free because your son is deaf. Now you are saying they charged a deaf guy for a permit unlawfully.

I am not saying that this was the way it went but it sure sounds like it. Why couldn't you have applied for the handicapped permit BEFORE you got caught dredging without a permit and got it for free? It would have been working within the law and it would have been scott free for a deaf person, no? Instead you tried to get by withoput a permit at all, got caught dredging without a permit and was asked to buy one rather than face the fines, and then still tried to get it for free. That didnt work so now you are griping about it.

In total, I would bet you $192 that one dredge permit is all you bought to dredge in California. So you were made to obey the law and now you are crying foul.

Bob

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I am still thinking about handicapped hunters in New Mexico, I have this mental picture of you going out hunting with you Terrets Syndrome and all. Well, the animals are safe anyway :hahaha:

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