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old gold miner, September 3, 2009 in GOLD PROSPECTING
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:
I, my friend, am a natural born killer. I cant get a handicapped permit because I am not immobile...Those permits are a lot liek California dredging permits...
"who requires assistance in operating a suction dredge"
Well, the turretts dont keep me from walking so I just have to pay full price like everyone else does.
Dont bother me at all.
In California anyone working the "nozzle" has to have a dredging permit, you can tend the sluice without a permit, but the instant you touch the nozzle you are required to have the permit, but most of the DFG field Officers don't know the regulations very well most of the time and will "make" them up as they go, it is best that everyone has a permit to avoid hassle, so usually everyone working the dredge has a permit, because you switch off one tending the sluice box and one on the nozzle, possibly one moving big rocks, when working a dredge as a team usually everyone spends time in all of the positions.
The best thing is to have in writing any regulation that will pertain the activity that you are engaged in so you can "educate" the DFG field officer when they "make up" regulations while in the field, if they still continue to say your are wrong stop what you are doing and get their NAME, BADGE #, and the Field office they work out of, and contact the PLP and their superiors at the the Field office, before going back and doing what you know is right.
I not 100% sure as to how handicap permits work, but I do know that everyone has to have a permit of some type, even handicapped persons.
Bob, In California anyone working the "nozzle" has to have a dredging permit, you can tend the sluice without a permit, but the instant you touch the nozzle you are required to have the permit, but most of the DFG field Officers don't know the regulations very well most of the time and will "make" them up as they go, it is best that everyone has a permit to avoid hassle, so usually everyone working the dredge has a permit, because you switch off one tending the sluice box and one on the nozzle, possibly one moving big rocks, when working a dredge as a team usually everyone spends time in all of the positions. The best thing is to have in writing any regulation that will pertain the activity that you are engaged in so you can "educate" the DFG field officer when they "make up" regulations while in the field, if they still continue to say your are wrong stop what you are doing and get their NAME, BADGE #, and the Field office they work out of, and contact the PLP and their superiors at the the Field office, before going back and doing what you know is right. I not 100% sure as to how handicap permits work, but I do know that everyone has to have a permit of some type, even handicapped persons. Skip
I have been dredging in California twice and that is how I understood the law... prospectors were permitted and the dredge was of no consequence. I believe I paid $100 bucks for the permit and it was several years ago.
The story sounded fishy to me. I just dont believe they charged a deaf kid for a permit if there was a valid permit held by his father. Even if they did, one call to the DGF director and it would have been refunded. I come from the "crookedest" state in America but that still would not happen here. Here they would beat you up, take your equipment and say that you were resisting arrest, but the deaf kid would still get a free dredging permit after he was released from prison.
I find it hard to beleive the story, especially at Italian Bar where there are so many club represented dredgers that know the rules. If it happened it was a travesty, but it wont be easy to convince me it happened. And to a GPAA member? Was the GPAA informed that it happened on their claim? There should have been an inquisition!
So many tall tales. It would behoove us to play by the rules, not make up stories designed to enrage each other, and basically stick to the "right" side of the road. We cant fight our way out of this. We have to play the game.
CURRENT BILL STATUS
MEASURE : S.B. No. 670
AUTHOR(S) : Wiggins (Principal coauthor: Assembly Member Huffman)
(Coauthor: Senator Wolk) (Coauthors: Assembly Members
Evans and Jones).
TOPIC : Vacuum or suction dredge equipment.
+LAST AMENDED DATE : 06/26/2009
TYPE OF BILL :
2/3 Vote Required
Non-State-Mandated Local Program
LAST HIST. ACT. DATE: 08/06/2009
LAST HIST. ACTION : Chaptered by Secretary of State. Chapter 62,
Statutes of 2009.
COMM. LOCATION : ASM APPROPRIATIONS
COMM. ACTION DATE : 07/01/2009
COMM. ACTION : Do pass.
COMM. VOTE SUMMARY : Ayes: 12 Noes: 00 PASS
TITLE : An act to add Section 5653.1 to the Fish and Game Code,
relating to dredging, and declaring the urgency thereof,
to take effect immediately.
Senate floor, July 10, 2009
Assembly floor, July 6, 2009
Assembly committee, June 30, 2009
Assembly committee, June 15, 2009
Senate floor, May 21, 2009
Senate floor, May 20, 2009
Senate floor, May 12, 2009
Senate committee, April 24, 2009
Senate floor, July 13, 2009
Assembly floor, July 9, 2009
Assembly committee, July 1, 2009
Assembly committee, June 16, 2009
Senate floor, May 26, 2009
Senate committee, April 28, 2009
Aug. 6: Chaptered by Secretary of State. Chapter
Aug. 5: Approved by Governor.
July 27: Enrolled. To Governor at 11:30 a.m.
July 13: Senate concurs in Assembly amendments.
July 9: In Senate. To unfinished business.
July 9: Read third time. Urgency clause adopted. Passed.
July 6: Read second time. To third reading.
July 2: From committee: Do pass.
June 26: From committee with author's amendments. Read second time.
June 16: From committee: Do pass, but first be re-referred to Com. on APPR.
June 8: To Com. on W.,P. & W.
May 26: In Assembly. Read first time. Held at Desk.
May 26: Read third time. Urgency clause adopted. Passed.
May 20: Read second time. To third reading.
May 19: Read third time. Amended. To second reading.
May 13: Read second time. To third reading.
May 12: From committee: Be placed on second reading file pursuant to Senate
May 1: Set for hearing May 11.
Apr. 28: From committee: Do pass, but first be re-referred to Com. on APPR.
Apr. 1: Set for hearing April 28.
Mar. 19: To Com. on N.R. & W.
Mar. 2: Read first time.
Mar. 1: From print. May be acted upon on or after March 31.
Feb. 27: Introduced. To Com. on RLS. for assignment. To print.
BILL NUMBER: SB 670 INTRODUCED
INTRODUCED BY Senator Wiggins
FEBRUARY 27, 2009
An act to add Section 5653.1 to the Fish and Game Code, relating
to dredging, and declaring the urgency thereof, to take effect
LEGISLATIVE COUNSEL'S DIGEST
SB 670, as introduced, Wiggins. Vacuum or suction dredge
Existing law prohibits the use of any vacuum or suction dredge
equipment by any person in any river, stream, or lake of this state
without a permit issued by the Department of Fish and Game. Under
existing law, it is unlawful to possess a vacuum or suction dredge in
areas, or in or within 100 yards of waters, that are closed to the
use of vacuum or suction dredges. A violation of the permit
requirement is a misdemeanor. The department is authorized to close
areas otherwise open for dredging and for which permits have been
issued if there is an unanticipated water level change and the
department determines that closure is necessary to protect fish and
wildlife resources. Existing law requires the department to adopt
regulations to implement certain of the vacuum or suction dredge
equipment requirements and authorizes the department to issue
regulations with respect to other requirements. Existing law requires
that the regulations be adopted in accordance with the requirements
of the California Environmental Quality Act (CEQA).
CEQA requires a lead agency, as defined, to prepare, or cause to
be prepared by contract, and certify the completion of, an
environmental impact report on a project, as defined, that it
proposes to carry out or approve that may have a significant effect
on the environment, or to adopt a negative declaration if it finds
that the project will not have that effect. The act exempts from its
provisions, among other things, certain types of ministerial projects
proposed to be carried out or approved by public agencies, and
emergency repairs to public service facilities necessary to maintain
This bill would prohibit the use of any vacuum or suction dredge
equipment in any river, stream, or lake until the director of the
department certifies to the Secretary of State that (1) the
department has completed an environmental review of its existing
vacuum or suction dredge equipment regulations as ordered by the
court in a specified court action, (2) the department has transmitted
for filing with the Secretary of State a certified copy of new
regulations, and (3) the new regulations are operative.
This bill would declare that it is to take effect immediately as
an urgency statute.
Vote: 2/3. Appropriation: no. Fiscal committee: yes.
State-mandated local program: no.
THE PEOPLE OF THE STATE OF CALIFORNIA DO ENACT AS FOLLOWS:
SECTION 1. Section 5653.1 is added to the Fish and Game Code, to
5653.1. (a) (1) The program of the department governing the
issuance of permits to operate vacuum or suction dredge equipment is
a project pursuant to the California Environmental Quality Act
(Division 13 (commencing with Section 21000) of the Public Resources
Code) and may proceed only if the department has caused to be
prepared, and certified the completion of, a programatic
environmental impact report on the project.
(2) The issuance of permits pursuant to Section 5630 is not a
ministerial act pursuant to the California Environmental Quality Act
Code), and permits shall not be issued by the department pursuant to
the program when a subsequent or supplemental environmental impact
report is required to be prepared and certified pursuant to Section
21166 of the Public Resources Code.
(3) This subdivision does not constitute a change in, but is
declaratory of, existing law.
(B) Notwithstanding Section 5653, the use of any vacuum or suction
dredge equipment in any river, stream, or lake of this state is
prohibited until the director certifies to the Secretary of State
that all of the following have occurred:
(1) The 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.
(2) The department has transmitted for filing with the Secretary
of State pursuant to Section 11343 of the Government Code, a
certified copy of the new regulations adopted pursuant to Chapter 3.5
(commencing with Section 11340) of Part 1 of Division 3 of Title 2
of the Government Code, whichever occurs first.
(3) The new regulations are operative.
SEC. 2. This act is an urgency statute necessary for the immediate
preservation of the public peace, health, or safety within the
meaning of Article IV of the Constitution and shall go into immediate
effect. The facts constituting the necessity are:
The Department of Fish and Game is issuing permits for the
operation of vacuum or suction dredging equipment in violation of a
court order and the California Environmental Quality Act and
threatens water quality and at-risk fish and other species.
THE FINAL ONE THAT WAS SIGNED INTO LAW READS THIS:
SEC. 2. This act is an urgency statute necessary for the immediate
preservation of the public peace, health, or safety within the meaning of
Article IV of the Constitution and shall go into immediate effect. The facts
constituting the necessity are:
The Legislature finds that suction or vacuum dredge mining results in
various adverse environmental impacts to protected fish species, the water
quality of this state, and the health of the people of this state, and, in order
to protect the environment and the people of California pending the
completion of a court-ordered environmental review by the Department of
Fish and Game and the operation of new regulations, as necessary, it is
necessary that this act take effect immediately.
Schwarzenegger Signs Wiggins Bill to Halt Suction Dredge Mining
Thursday, August 06, 2009
Contact: David W. Miller (916) 651-1897
Temporary Ban on Motorized Mining, Which Will Boost Salmon,
Steelhead & Trout Populations, Goes into Effect Immediately
Sacramento – Governor Schwarzenegger today signed legislation by North Coast State Senator Patricia Wiggins (D – Santa Rosa) to place a short-term ban on suction dredge mining, a controversial gold mining technique which threatens vulnerable fish populations, and pollutes rivers and streams.
Wiggins’ measure, SB 670, places a moratorium on motorized suction dredge mining in California streams until the state Department of Fish and Game (DFG) finishes a court-ordered overhaul of regulations governing the practice, which is destructive to spawning grounds for endangered and threatened salmon, steelhead, and trout populations.
Wiggins says her legislation will help address the alarming decline of salmon, steelhead and trout populations throughout California. She said the Governor’s support for the bill “is a boost for the state’s commercial fishing industry and local economies and is a victory for the fish.
“The current ban on salmon fishing affects the livelihoods of thousands of commercial fishermen, fish processors, and charter boat operators. The ban has eliminated hundreds of thousands of dollars in economic activity – especially in rural areas.
“Yet while fishermen are being told to stop fishing, suction dredge mining is allowed to continue,” she added. “This measure will help create economic equity. We can’t ask an entire fishing industry to stop its work while allowing a small group of mostly recreational hobbyists to continue a practice that harms fishery resources.”
SB 670 passed the Legislature with a bi-partisan two-thirds “urgency” vote, which means the law takes effect immediately. Other forms of mining are unaffected and miners will still have access to mining claims.
Suction dredge mining involves engines on pontoons that suck up sediment from stream bottoms in order to sort for gold, and then spit the debris back into the river bed. Fish eggs and larvae are killed when sucked through the machines, and the streambeds are altered, leaving unstable spawning beds for salmon. In the Sierra, dredging stirs up long-buried mercury, left over from the gold rush, threatening communities downstream and getting into the human food chain.
The DFG was ordered by the courts to overhaul regulations governing suction dredge mining on streams as a result of a 2005 lawsuit by the Karuk Tribe. Pushed by suction dredge miners, the courts ordered the department to complete a California Environmental Quality Act (CEQA) review before it acted. That review was supposed to be completed by July 2008, but DFG only recently finished the contracting process.
In July, the Alameda County Superior Court ordered a moratorium on new dredge permits pending resolution of a complaint charging that tax payer money is illegally subsidizing issuance of dredging permits by the DFG. That order applies only to future permits; SB 670 immediately halts all suction dredge mining.
These retards below this line I have placed in BOLD all need to be fired/sent home/tar and feathered/boiling oil/tied up and forced to watch dredging.
Assemblyman Jared Huffman (D – San Rafael) is principal co-author of the bill. Senator Lois Wolk (D – Davis) is also a co-author, as are Assemblymembers Noreen Evans (D – Santa Rosa) and Dave Jones (D – Sacramento).
SB 670 was sponsored by the California Tribal Business Alliance and the Karuk Tribe. It is supported by a range of fishermen, environmental and tribal organizations including: California Trout, Pacific Coast Federation of Fishermen's Associations, The Sierra Fund, California Sportsfishing Protection Alliance Ramona Band of Cahuilla Indians, San Manuel Band of Mission Indians, the Sycuan Band of the Kumeyaay Nation, Klamath Riverkeeper, Friends of the River and Environmental Justice Coalition for Water.
Hey OGM!!! I would like to know what you think is going on with buisnesses like these http://www.roaringcampgold.com/ I am going to give them a shout again soon. I called them back when SB 670 was passed when I got back to Texas and asked if people were still dredging and she told me they were not going to stop until told to do so. I understand the "taking" SB 670 has done to our unpatented federal claims but can not even begin comprehend what these good folks that have patented claims making an income off the people visiting to dredge are going through. I think it make me more mad they are taking peoples ability to survive more than anything. I will let y'all know what they tell me when I find out. I hope they have found a way around it!
I WONDER HOW CA-DFG IS GOING TO COMPLY WITH CA-APA
I gather they will just ignore the following APA mandates.
The Administrative Procedure Act (APA) establishes rulemaking procedures and standards for state agencies in California. The requirements set forth in the APA are designed to provide the public with a meaningful opportunity to participate in the adoption of state regulations and to ensure that regulations are clear, necessary and legally valid. The APA is found in the California Government Code, section 11340 et seq. State regulations must also be adopted in compliance with regulations adopted by OAL (see California Code of Regulations, Title 1, sections 1-280).
11346.3. (a) State agencies proposing to adopt, amend, or repeal any administrative regulation shall assess the potential for adverse economic impact on California business enterprises and individuals, avoiding the imposition of unnecessary or unreasonable regulations or reporting, recordkeeping, or compliance requirements. For purposes of this subdivision, assessing the potential for adverse economic impact shall require agencies, when proposing to adopt, amend, or repeal a regulation, to adhere to the following requirements, to the extent that these requirements do not conflict with other state or federal laws:
(1) The proposed adoption, amendment, or repeal of a regulation shall be based on adequate information concerning the need for, and consequences of, proposed governmental action.
(2) The state agency, prior to submitting a proposal to adopt, amend, or repeal a regulation to the office, shall consider the proposal's impact on business, with consideration of industries affected including the ability of California businesses to compete with businesses in other states. For purposes of evaluating the impact on the ability of California businesses to compete with businesses in other states, an agency shall consider, but not be limited to, information supplied by interested parties. It is not the intent of this section to impose additional criteria on agencies, above that which exists in current law, in assessing adverse economic impact on California business enterprises, but only to assure that the assessment is made early in the process of initiation and development of a proposed adoption, amendment, or repeal of a regulation.
JANUARY 2010 FEDERAL EPA SMALL SCALE SUCTION DREDGE STUDY
“***EPA has determined that issuance of this permit
is not likely to have an adverse effect
on essential fish habitat (EFH), federally listed threatened or endangered (T&E) species or critical habitat. ***”
A few folks need to send this link to CA DFG
RE: New small scale suction dredge study CEQA literature
The previous CA dredge regulations were formulated with a Environmental Impact Report....no new information has been made to disregard the prior EIR, in fact I believe the Fish and Wildlife people would not even make any "alledged" information as to derogatory effects on fish or fish habitat "public".
Old Gold miner shows where the legislature clearly violated the law as to alledgedly passing the "ban" because of "alledged" harm (without showing where the information is to back up this claim, which we know is merely "allegations").
The greens have co-opted the agencies and the legislature and they are all about "dis-information" and "murky" allegations that they cannot ever get to the bottom of so that they will be "stumbling" blocks to doing anything that they politically disagree with.
The "new info" is the listing of several ESA fish, Coho salmon, etc.
30 U.S.C. § 22. Lands open to purchase by citizens
Except as otherwise provided, all valuable mineral deposits in lands belonging to the United States, … shall be free and open to exploration and purchase, and the lands in which they are found to occupation and purchase, by citizens of the United States … under regulations prescribed by law, and according to the local customs or rules of miners in the several mining districts [now = states], so far as the same are applicable and not inconsistent with the laws of the United States.
AND NOT INCONSISTANT WITH THE LAWS OF THE UNITED STATES. (emphasis added)
Irrefutably, federal law is the supreme law of the land & preempts any state law in conflict with overriding federal law.
It takes no legal genius, wizard, or lawyer to determine that the provisions of SB 670 prohibiting mining state wide (including all public domain lands) for an indefinite period of time are certainly preempted by federal law.
Simply because that state law mining prohibition is clearly INCONSISTANT with the laws of the United States. Which promotes, encourages and provides for mineral entry on applicable federal public domain lands.
It is impossible to even raise a rational argument otherwise.
California State Agencies, The Governor & Attorney General are being sued in FEDERAL COURT……IN CALIFORNIA…..BY SOME BIG INDUSTRY…(WITH HUGE CLOUT & WELL FUNDED)…..about most of the same basic issues contained in PLP v. SB 670 complaint & pleadings against SB 670.
This case has direct bearing on ours.
UNITED STATES DISTRICT COURT EASTERN DISTRICT OF CALIFORNIA
NATIONAL PETROCHEMICAL & REFINERS ASSOCIATION, AMERICAN TRUCKING ASSOCIATIONS, THE CENTER FOR NORTH AMERICAN ENERGY SECURITY, and THE CONSUMER ENERGY ALLIANCE,
JAMES GOLDSTENE, in his official capacity as Executive Officer of the California Air Resources Board; MARY D. NICHOLS, DANIEL SPERLING, KEN YEAGER, DORENE D’ADAMO, BARBARA RIORDAN, JOHN R. BALMES, LYDIA H. KENNARD, SANDRA BERG, RON ROBERTS, JOHN G. TELLES, and RONALD O. LOVERIDGE, in their official capacities as members of the California Air Resources Board; ARNOLD SCHWARZENEGGER in his official capacity as Governor of the State of California; and EDMUND G. BROWN, JR. in his official capacity as Attorney General of the State of California,
COMPLAINT FOR DECLARATORY AND INJUNCTIVE RELIEF AND JURY DEMAND
20. Subject matter jurisdiction is founded on 28 U.S.C. §§ 1331 and 1343 because this
case arises under the Constitution and laws of the United States.
Venue is proper in this Court under 28 U.S.C. § 1391 b. Defendants maintain their
offices within the Eastern District of California and the events giving rise to the claims herein occurred within this judicial district.
Violation of the Commerce Clause
Violation of the Supremacy Clause
Is unconstitutional under the Supremacy Clause because it conflicts with and stands as an obstacle to the accomplishment and execution of the full purposes and objectives of the federal laws and regulations.
Defendants are purporting to act within the scope of their authority under state law in
enforcing and implementing the LCFS.
Defendants are liable to Plaintiffs for proper redress under 42 U.S.C. § 1983 because
the LCFS deprives Plaintiffs’ members of the rights, privileges, and immunities secured by the Supremacy Clause of the United States Constitution.
WHEREFORE, Plaintiffs respectfully request the following relief:
A. A declaratory judgment, pursuant to 28 U.S.C. § 2201, that the LCFS violates the
United States Constitution and is unenforceable;
B. A preliminary and permanent injunction enjoining the Defendants from implementing
or enforcing the LCFS;
C. An order awarding Plaintiffs their costs and attorneys’ fees pursuant to 42 U.S.C. §
D. Such other and further relief as the Court deems just and proper.
DEMAND FOR JURY TRIAL
Pursuant to Federal Rule of Civil Procedure 38 b , Plaintiffs demand a trial by jury in this
action of all issues so triable.
LINK TO FULL COMPLAINT
Suction dredge gold mining, on valid mining claims is a perfectly legitimate LAND USE.
Nonconforming (grandfathered) uses of land.
These are land uses that would not be permitted under current regulations, but which were established before the regulations went into effect.
Once established, they "run with the land" - that is, they automatically continue in force when the land is sold.
Meaning, such nonconforming land uses can continue to operate under the rules/regulations that existed prior to the regulatory change.
Nonconforming rights are "vested property rights".
There is bedrock solid case law on the subject in California & Nation wide (including mining issues).
Federal law that governs all public domain lands adhere to the long standing rule of law protecting “Vested - Valid Existing Rights”. As an example, both pre & post Federal Land Policy Management Act (FLPMA) public domain land withdrawals, where such lands are withdrawn from mineral entry under the General Mining Laws expressly acknowledge, and grant clear Constitutional protection to Vested Valid Existing Rights, where they exist, prior to any land withdrawal date.
It stands that, all patented mining claims, as well as unpatented mining claims that pre-existed ANY suction dredge regulation have those vested property rights.
For that matter, any valid unpatented mining claim existing in California LAST year (pre SB 670), would be exempt (grandfathered), from any new regulation.
FLPMA mandates federal public domain may ONLY be withdrawn from mineral entry, and use(under the General Mining Laws) by express consent of Congress, or in in certain instances, by the Secretary of Interior. The current SB 670 mining prohibition on all lands state wide constitutes a FLPMA “withdrawal” only Congress may make.
No State has legislative authority, or any power whatsoever to ignore, override, or abrogate Acts of Congress.
General Mining Laws (30 USC § 22 et., seq)
Grant the following rights to valid unpatented mining claim owners.
“Lands open to purchase by citizens: Except as otherwise provided, all valuable mineral deposits in lands belonging to the United States, …shall be free and open to exploration and purchase, and the lands in which they are found to occupation and purchase, by citizens of the United States … under regulations prescribed by law, and according to the local customs or rules of miners in the several mining districts [states], so far as the same are applicable and not inconsistent with the laws of the United States“. 30 USC § 22.
"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).
The discovery of a valuable mineral deposit within its limits validates a mining claim located on public land in conformance with the statute and its locator acquires an exclusive possessory interest (valid existing private property rights) in the claim; a form of real property which can be sold, transferred, mortgaged, or inherited, without infringing the paramount title of the United States. 30 U.S.C. § 26; Cole v. Ralph, 252 U.S. 286, 295 (1920); Forbes v. Gracey, 94 U.S. 762, 767 (1877).
The claimant has the exclusive right to possession and enjoyment of all the surface included within the lines of the locations, but the United States retains title to the land. 30 U.S.C. § 26, 35; Union Oil Co. of California v. Smith, 249 U.S. 337, 349 (1919); Wilbur v. U.S. ex rel. Krushnic, 1930, 50 S.Ct. 103, 280 U.S. 306, 74 L.Ed. 445; California Coastal Comm'n v. Granite Rock Co., 480 U.S. 572, 575, 107 S.Ct. 1419, 1422, 94 L.Ed. 2d 577 (1987); Swanson v. Babbitt, 3 F.3d 1348, 1350 (9th Cir. 1993).
30 U.S.C. § 26 addresses the "locators' rights of possession and enjoyment" as follows: "The locators of all mining locations on the public domain so long as they comply with the laws of the United States, and with State and local regulations not in conflict with the laws of the United States governing their possessory title, shall have the exclusive right of possession and enjoyment of all the surface included within the lines of their locations."
There is no question that reasonable access to a valid mining claim cannot be denied. 36 C.F.R. § 228.12; see United States v. James and Marjorie Collard, 128 IBLA 266, 291 (1994).
16 U.S.C. § 481, Use of Waters: All waters within boundaries of national forests may be used for domestic, mining, milling, or irrigation purposes under the laws of the state wherein such national forests are situated or under the laws of the United States and the rules and regulations established thereunder.
Valid 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).
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).
A locator has the right of possession against all intruders and the right to protect his possession and to work the land for valuable minerals. Miller v. Chrisman, 140 Cal. 440, 447, 73 Pac. 1083, 74 Pac. 444, 98 Am. St. Rep. 63 (case affirmed 197 U.S. 313, 25 Sup. Ct. 468; Weed v. Snook, ubi supra; Merced Oil Mining Co. v. Patterson, 153 Cal. 624, 625, 96 Pac. 90; s. c., 162 Cal. 358, 361, 122 Pac. 950; McLemore v. Express Oil Co., 158 Cal. 559, 562, 112 Pac. 59, 139 Am. St. Rep. 147., Garthe v. Hart, 73 Cal. 541.
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”).)
The holder of a claim supported by a discovery need not seek patent; his unpatented mining claim remains a fully recognized possessory right. 30 U.S.C. § 39; United States v. Locke, 471 U.S. 84, 86 (1985).
If a discovery of a "valuable mineral deposit" is made, the claim can be held indefinitely so long as the annual assessment work is performed, the necessary filings are made, fees are paid, and a valuable mineral deposit continues to exist. See Best v. Humboldt Placer Mining Co., 371 U.S. 334, 336, 83 S.Ct. 379, 382, 9 L.Ed. 2d 350 (1963).
Even though title to the fee estate remains in the United States, these unpatented mining claims are themselves property protected by the Fifth Amendment against uncompensated takings. See Best v. Humboldt Placer Mining Co., 371 U.S. 334 (1963); cf. Forbes v. Gracey, 94 U.S. 762, 766 (1876); U.S.C.A.Const. Amend. 5; North American Transportation & Trading Co. v. U.S., 1918, 53 Ct.Cl. 424, affirmed 40 S.Ct. 518, 253 U.S. 330; United States v. Locke, 471 U.S. 84, 107, 105 S.Ct. 1785, 1799, 85 L.Ed. 2d 64 (1985); 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); Rybachek v. United States, 23 Cl.Ct. 222 (1991).
Such an interest may be asserted against the United States as well as against third parties (see Best v. Humboldt Placer Mining Co., 371 U.S. 334, 336 (1963); Gwillim v. Donnellan, 115 U.S. 45, 50 (1885)) and may not be taken from the claimant … without due compensation. See United States v. North American Transportation & Trading Co., 253 U.S. 330 (1920); cf. Best v. Humboldt Placer Mining Co.
"Uncompensated divestment" of a valid unpatented mining claim would violate the Constitution. 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).
A valid location, though unpatented, is a grant in the nature of an estate in fee and if such an estate is taken by the United States, just compensation must be made. See U.S.C.A. Const. Amend. 5, North American Transportation & Trading Co. v. U.S., 1918, 53 Ct.Cl. 424, affirmed 40 S.Ct. 518, 253 U.S. 330.
On September 9, 1850, Congress passed an Act for the Admission of California into the Union. 31 Cong. Ch. 50, September 9, 1850, 9 Stat. 452. In critical part, that Act states as follows:
Sec. 3. And be it further enacted, That the 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.
As such, Congress clearly abrogated, and California forever expressly conceded all rights to control the disposition of how the federal government disposes of federal public domain lands within its boundaries.
Provisions of SB 670 prohibit all suction dredge gold mining statewide in California, for an indefinite period of time. As such, SB 670 suction dredging gold mining ban is an unlawful constraint on mining claim owners use of federal public domain in California. As it clearly conflicts with the federal mandate that states cannot pass law or regulation “inconsistent” with, or that “impairs” 30 USC § 22.
The application of the General Mining Law to national forests was specifically affirmed by Congress in the Organic Act, which makes the national forests “subject to entry under the existing mining law of the United States and the rules and regulations applying thereto.” 16 U.S.C. § 482; see Wilderness Soc’y v. Dombeck,168 F.3d 367, 374 (9th Cir. 1999).
The Organic Act also allows the Secretary of Agriculture to make rules regulating the “occupancy and use [of National Forest land]n” 16 U.S.C. § 551.
Nothing in the Organic Act, however, “shall be construed as prohibiting . . . any person from entering upon such national forests for all proper and lawful purposes, including that of prospecting, locating, and developing the mineral resources thereof.” 16 U.S.C. § 478.
While the Secretary of Agriculture may reasonably regulate mining on National Forest land to protect surface resources, the authority to manage the mineral estate on all federal land is vested in the Secretary of the Interior. See 16 U.S.C. § 472 (transferring power from Secretary of the Interior to make laws regarding National Forest reserves, but “excepting such laws as affect” the prospecting and entering of such lands); see also Best v. Humboldt Placer Mining Co., 371 U.S. 334, 336 (1963)
Additionally, while the Mining of Act of 1872 originally expressed no legislative intent, Congress declared its intent to retain and manage the surface resources of located unpatented mining claims when it passed the Multiple Use Mining Act. California Coastal, 480 U.S. at 582.
The Bureau of Land Management (BLM) is responsible for managing the mineral resources on federal lands and the USFS (under the Secretary of Agriculture) is responsible for the management of surface impacts of mining on federal lands. Id at 585. Both FLPMA and the National Forest Management Act pre-empt the "extension of state land plans onto unpatented mining claims in national forest lands." Id
The Federal Land Policy and Management Act of 1976 (43 U.S.C. 1701-1782), requires the Secretary of the United States Department of the Interior to develop and implement land use plans for the various public lands. This Act specifically gives the Secretary of the Interior the discretion to preempt state and local land use plans if they are inconsistent with the federal development scheme. 43 U.S.C. 1712©(9).
The policies contained in FLPMA explicitly state that the management, protection, disposition and disposal/withdrawal of federal lands is vested in the federal government and not with the state. In short, a state cannot dictate to the federal government, or a federal agency what specific land uses are or are not allowed on federal lands.
The SB 670 suction dredge gold mining prohibition on valid mining claims, on federal public domain lands, also clearly conflict with other major federal mandates. Including the Federal Land Policy and Management Act of 1976 (FLPMA), 43 U.S.C. §1701 et seq.
FLPMA 43 U. S. C. § 1702. Definitions (e) The term “public lands” means any land and interest in land owned by the United States within the several States … without regard to how the United States acquired ownership.
(j) The term “withdrawal” means withholding an area of Federal land from settlement, sale, location, or entry, under some or all of the general land laws, for the purpose of limiting activities under those laws in order to maintain other public values in the area or reserving the area for a particular public purpose or program;
FLPMA 43 U.S.C. §1712 (e) (3) Withdrawals made pursuant to section 204 of this Act [43 USCS Sec. 1714] may be used in carrying out management decisions, but public lands shall be removed from or restored to the operation of the Mining Law of 1872, . . . only by withdrawal action pursuant to section 204 [43 USCS Sec. 1714] or other action pursuant to applicable law:
FLPMA 43 U.S.C. § 1732(B)… “no provision of this section or any other section of this Act shall in any way amend the Mining Law of 1872 or impair the rights of any locators or claims under that Act, including, but not limited to, rights of ingress and egress“. FLPMA § 302(B).
Less than 5,000 acres of federal public domain lands may only be withdrawn from entry, occupation and use under The General Mining Laws by the Secretary of Interior. More than 5,000 acres can only be withdrawn with the explicit consent of Congress pursuit to provisions of the Federal Land Policy and Management Act of 1976 (FLPMA), 43 U.S.C. §1701 et seq.
Provisions of SB 670 not only “limit” mining activity on federal public domain lands, they expressly prohibit such activities. As such, SB 670 mining prohibitions constitute a “withdrawal” pursuant to FLMPA. The point being, only the Secretary of the Interior, or Congress may make such withdrawals. Clearly, no state has any authority make federal public domain land withdrawals.
Public land under the ownership of the United States. “The power over the disposition of such land and the minerals contained therein is in Congress and not in the states“. (McLemore v. Express Oil Co. (1910) 158 Cal. 559, 562; Moore v. Smaw (1861) 17 Cal. 199, 218-219.)
A regulation (a de facto closure) which removes [public domain lands] from its prior use, or from mineral entry, is a withdrawal within the meaning of the Federal Land Planning and Management Act of 1976, (FLPMA). It “operates to remove lands from public use” and, as such, constitutes a “withdrawal” subject to FLPMA. (Mountain States Legal Foundation v. Andrus, (D.C. (Wyo.) 1980) 499 F.Supp. 383; FLPMA §204©; 43 USCA §1714©; FLPMA §103(j); 43 USCA §1702(j).)
State jurisdiction over federal land "does not extend to any matter that is not consistent with full power in the United States to protect its lands, to control their use and to prescribe in what manner others may acquire rights in them." Utah Power, 243 U.S. at 404.
If Congress so chooses, federal legislation, together with the policies and objectives encompassed therein, necessarily override and preempt conflicting state laws, policies, and objectives under the Constitution's Supremacy Clause, U.S. Const. art. VI, cl. 2. See Kleppe, 426 U.S. at 543 ("'A different rule would place the public domain of the United States completely at the mercy of [the State]'" (quoting Camfield v. United States, 167 U.S. 518, 526 (1897)).
When a State through its entities or officials voluntarily elects to participate in a federal program knowing that a consequence of participation is a waiver of immunity from suit, the State’s waiver of immunity is just as much an “intentional
relinquishment or abandonment of a known right or privilege” (College Sav., 527 U.S. at 682) as a waiver that is expressly embodied in state law.
Congress has authority under the Constitution to condition state access to a federal program or benefit on a waiver of the State’s immunity from suit, federal law determines the consequences of the State’s voluntary actions, and any state effort to negate that condition through reliance on state law would be preempted by the Supremacy Clause. Lawrence County v. Lead-Deadwood Sch. Dist. No. 40-1, 469 U.S. 256, 257-258 (1985)
A State may not simultaneously accept the benefits of a federal program and fail to comply with the conditions upon which those benefits are extended. Townsend v. Swank, 404 U.S. 282, 286 (1971) (state rule that conflicts with the conditions on which federal funds are offered is “invalid under the Supremacy Clause”).
It is absolutely established that a valid unpatented placer mining claim is in fact a Statutory Federal Grant of “private property” derived from 30 U.S.C. § 21-54. All unpatented placer mining claims situated in California are on federally owned lands, under jurisdiction of the USFS, or BLM. Otherwise none would exist, as federal land is the only place an unpatented mining claim can be initiated, and held.
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 , must fail.
Under the Supremacy Clause, any state law that conflicts with a federal law is preempted. Gibbons v. Ogden, 22 U.S. 1 (1824). 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, 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).
In determining whether a state law is a sufficient obstacle, the courts examine the federal statute as a whole and identify its purpose and intended effects and then determine the impact of the challenged law on congressional intent. State law can be pre-empted in either of two general ways. If Congress evidences an intent to occupy a given field, any state law falling within that field is pre-empted.
If Congress has not entirely displaced state regulation over the matter in question, state law is still pre-empted 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. California Coastal Comm’n v. Granite Rock Co., 480 U.S. 572, 581 (1987)
State regulations are permissible on federal lands only to the extent they are not inconsistent with or in conflict with the United States. Brubaker v. Board of County Comm 'rs, El Paso County, 652 P.2d 1050, 1058 (Colo. 1982). However, not all state regulation of mining claims is permissible, and state laws prohibiting activities authorized under federal mining laws are not permissible. South Dakota Mining Ass 'n v. Lawrence County, 977 F.Supp 1396, 1403 (D.S.D. 1997).
Small scale suction dredging is the primary exploration, and production method for recovering placer gold on valid placer mining claims over federal public domain lands, open to mineral entry under the General Mining Laws (30 USC § 22 et., seq). The vast majority of all small scale suction dredge gold mining in California takes place on unpatented, or patented mining claims situated on or within federal public domain lands.
With only rare exception, small scale suction dredging is the only viable environmentally friendly means that ordinary men have to economically benefit from right to mine (private property rights) granted to them under 30 USC § 22. Indisputably, 30 USC § 22 is a federal land [mining claim] disposal law, including a grant to the owner, the right to mine applicable minerals therein.
California SB 670, effective August 6, 2009
Section 5653.1 is added to the Fish and Game Code, to read:
5653.1. (a) The issuance of permits to operate vacuum or suction dredge equipment is a project pursuant to the California Environmental Quality Act (Division 13 (commencing with Section 21000) of the Public Resources Code) and permits may only be issued, and vacuum or suction dredge mining may only occur as authorized by any existing permit, if the department has caused to be prepared, and certified the completion of, an environmental impact report for the project pursuant to the court order and consent judgment entered in the case of Karuk Tribe of California et al. v. California Department of Fish and Game et al., Alameda County Superior Court Case No. RG 05211597.
(B) Notwithstanding Section 5653, the use of any vacuum or suction dredge equipment in any river, stream, or lake of this state is prohibited until the director certifies to the Secretary of State that all of the following have occurred:
(1) The 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.
(2) The department has transmitted for filing with the Secretary of State pursuant to Section 11343 of the Government Code, a certified copy of new regulations adopted, as necessary, pursuant to Chapter 3.5 (commencing with Section 11340) of Part 1 of Division 3 of Title 2 of the Government Code.
(3) The new regulations described in paragraph (2) are operative.
© The Legislature finds and declares that this section, as added during the 2009-10 Regular Session, applies solely to vacuum and suction dredging activities conducted for instream mining purposes.
This section does not expand or provide new authority for the department to close or regulate suction dredging conducted for regular maintenance of energy or water supply management infrastructure, flood control, or navigational purposes governed by other state or federal law.
(d) This section does not prohibit or restrict nonmotorized recreational mining activities, including panning for gold.
1. Plainly, in granting California statehood, Congress clearly abrogated, and California forever expressly conceded all rights to control the disposition of how the federal government manages, or disposes of federal public domain lands within its boundaries.
2. Unquestionably, the Federal General Mining Laws (30 USC § 22 et., seq) open all applicable federal public domain lands to mineral entry, occupation, mining use as a statutory right expressly granted to U.S. citizens.
3. indisputably, the Federal General Mining Laws (30 USC § 22 ) mandate States regulatory authority is expressly limited to regulations “not inconsistent with the laws of the United States“.
4. Irrefutably, by multiple express Acts of Congress the authority to manage the mineral estate and/or mining operations on all federal land is vested in the Secretary of the Interior (BLM) and/or in National Forests by the Secretary of Agriculture (USFS).
5. Incontrovertibly, the Federal Land Policy and Management Act, and the National Forest Management Act pre-empt the "extension of state land plans onto unpatented mining claims ."
6. Unmistakably, the Federal Land Policy and Management Act expressly precludes any State “withdrawal” of Federal public domain lands from application of the General Mining Law. As States have no authority to preempt Federal law.
7. Certainly, valid unpatented mining claims are ‘private property”, although such use is limited to mining, and uses reasonably incident thereto.
8. Clearly, all valid unpatented mining claims, and their viable economic use are fully protected from uncompensated “taking” by provision of the Fifth Amendment of the U.S. Constitution, as well as Article 1, § 19 of California’s Constitution.
Given the insurmountable magnitude of express Federal statutory protections granted by Federal law, regarding valid unpatented mining claims. As well as voluminous Supreme Court case law verifying those same protections, and fully validating associated mining rights. Without doubt, SB 670 will be struck down in Federal Court, as being in direct conflict with, and preempted by multiple provisions of overriding Federal law.
Furthermore, SB 670 legislation contains no “savings” or “severability” clause. As such, if any part of it is struck down, what remains is also. Meaning, all of SB 670 is void, as if it never existed. As a consequence of that, suction dredging in California would no longer be a California Environmental Quality Act (CEQA) “project”.
SOOOOOO, Hows that dredging going in California? Finding lots of Gold yet? I figure you guys are rich about now, as OGM and others stated that you had the Constitution on your side!
Please post some pictures so we all can see how your doing!
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