[env-trinity] Ledger Dispatch 2 19 10

Wed Feb 24 12:43:17 PST 2010

Lengthy, but worth having, including comments and quotes from laws following
story

State suction-dredging quarrel sourced in Siskiyou mining stretch

Friday, February 19, 2010

By Roger Phelps <mailto:rphelps at ledger-dispatch.com>  

A years'-long tangle of actions led up to Amador County's recent request to
make suction dredging for gold legal in California again.

Both a court injunction and legislation currently bar the practice.

On Jan. 26, many local miners urged Amador supervisors to request
re-legalization by Gov. Arnold Schwarzenegger. They argued that
suction-dredge mining is a right that can't legally be taken away by either
courts or legislators.

However, battles in court did influence the sweeping state ban that exist
now. 

To protect isolated dredge-mining operations in Siskiyou County, the New
49ers Inc. argued in court that a draft agreement was illegal that would
have banned suction dredging in some, but not all, American Indian salmon
fishing grounds on the Klamath River. The New 49ers won, but the victory has
come back to haunt both the group and miners around the state.

"They did shoot themselves in their own feet," said Glen Spain, regional
director of conservation group Pacific Coast Federation of Fishermen.

In May 2005, the Karuk Tribe, salmon fishers on the Klamath River, sued the
state Department of Fish and Game. The suit charged that the agency must be
required to review local dredge-mine permitting conditions in light of the
1997 listing as "threatened" of the Klamath coho salmon under the federal
Endangered Species Act. 

The New 49ers took the Karuk lawsuit personally. They got wind that Fish and
Game and the Karuks were crafting a settlement to ban suction dredging in
many creeks tributary to the Klamath - but for the most part not in the
heavily gold-bearing, vehicle-accessible river canyon. 

In December 2005, New 49ers lawyers filed a motion to intervene in the Karuk
v. Fish and Game suit. 

"This action not only threatens substantially to interfere with their
productive use of these property rights, but also to destroy their statutory
and regulatory rights of participation - and those of all other interested
parties - in the public decision-making process under the California
Environmental Quality Act and Administrative Procedure Act," the motion
argued.

It was granted in January 2006, stalling the DFG-Karuk settlement agreement.

McCracken wrote, "Incredible how fast we organized to get competent
attorneys representing our interests in this situation. We should
acknowledge ourselves for doing good in this so far. But it's not over yet."

Five months later, The New 49ers won the legal ruling they sought. Judge
Bonnie Sabraw held that the DFG-Karuk agreement would effectively
"promulgate new regulations on suction dredging (without observing)
requirements of CEQA and APA."

So, the possibility for merely a limited ban on suction dredging - in just a
single, isolated area - went away. 

Craig Tucker, spokesman for the Karuk Tribe, said despite the miners'
victory, he believed they used bad judgment in entering the court fight
between the tribe and the state.

"These guys fight tooth and nail if you're asking for an inch," Tucker said.
"So, (fishery advocates) said, 'Well, go for a full ban.' Local miners keep
saying they're going to file based on the (federal) Mining Law of 1872. If
they lose, they're going to screw all the miners in the country."

An employee named Joy at The New 49ers would not say whether she believed
The New 49ers' court action had opened the door for the state ban.

"You'd have to ask Dave (McCracken) that," she said.

McCracken, she said, is on extended business travel to Cambodia.

Following the miners' 2006 legal victory over Fish and Game's procedure,
remaining were both the underlying issue - whether suction dredging did or
didn't harm spawning habitat for a federally protected species - and the
likelihood that clever attorneys would continue to craft persuasive
arguments around it. 

In February 2009, the Karuks and conservation groups sued Fish and Game for
"using taxpayer dollars to fund an illegal recreational gold-mining
program." 

Plaintiffs alleged the state spent $1.25 million more per year on the
suction-dredge permit program than it receives in permit fees. 

In June 2009, the non-profit Klamath Riverkeeper filed for an injunction,
which was granted in July, preventing Fish and Game from spending General
Fund money to issue suction-dredging permits. 

Related state legislation, Senate Bill 670, bans suction dredging statewide
until Fish and Game completes an environmental review of the practice.

  _____  

Roger Phelps

COMMENTS ON THIS ARTICLE 

Fishing Kills Fish

just an FYI fishing kills fish not dredges.

 - J (2/22/2010 7:40:18 PM)

READ THIS

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(c)(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(c); 43 USCA §1714(c); 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 1. 

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

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

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

(1) The 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. 

(c) 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, and 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 states from making any "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".

 - Jim Aubert (2/21/2010 2:30:24 PM)

KARUK TRIBE HAS NO FISHING RIGHTS

Karuk Tribe does not have a federally-recognized or protected fishing right
on the Klamath River, or anywhere else in California. This fact was
confirmed by the Associate Solicitor for Indian Affairs in a 1994
memorandum. The Associate Solicitor concluded that there was "no evidence
that the Karuk's fishery is conducted pursuant to federally reserved Indian
fishing rights." Memorandum from Michael J. Anderson to Bill Shake, Fish and
Wildlife Service, March 7, 1994. The Associate Solicitor's review found no
treaties, federal statutes or executive orders that would form the basis for
a claim that the Karuk Tribe's fishery is based on federally-reserved
rights, nor was any evidence found of an "historic reservation or trust
lands set aside for fishery purposes." Land purchased and put into trust at
Ishi Pishi does not qualify as establishment of reserved fishing rights.

 - Jim Aubert (2/21/2010 2:10:52 PM)

Fair reporting

What has happened to fair reporting in America? The only reason this ban is
in place is because there is no such thing as fair reporting today. This is
a one sided article trying to blame a group trying to defend itself against
non stop attacks from an opponent. Mr. Phelps, you should be ashamed for
printing such a biased article. This is nothing more than another attempt at
the "divide and conquer" technique to pit miners against miners on the issue
of the dredging ban.

The article should have been titled "A few self serving individuals have
been successful in getting dredging banned after over six years of non stop
legal attacks"

The article should have mentioned how they did this using scientific
hypothesis, that had no unbiased scientific studies done to back up those
hypothesis, to claim that it is possible that there "might be harm being
done to protected species". That those hypothesis they put forth are in fact
in total contradiction to the multiple unbiased studies that have already
been done on suction dredging. That the conclusion of multiple studies done
to date is that suction dredging as performed within the regulations CDF&G
had already imposed on this industry resulted in an impact that was so small
it can barely be measured. That by getting other environmental groups to
support their cause, and by using the clout of Indian gaming revenue, where
able to get a ban against this industry by the State legislature.

That the current state ban has had an economic impact to this state in the
hundred of millions of dollars, resulting in the failure of many businesses,
both small and large, and that there are many people who relied on this
industry to support and feed their families.

That the opponents of dredging could have waited for the CDF&G EIR study to
be completed to see if in fact there was harm being done, but rather chose
themselves to keep up this non stop legal attack against this industry and
create the financial harm this ban has caused.

That this ban in fact has not helped any protected species, and in fact is
allowing the spread of heavy metal pollution caused by others, both past and
present, to be continually spread by natural high water events. That the
suction dredgers where the only group of people removing these heavy metal
pollutants from the environment. That the equipment used by suction dredgers
removes over 98% of the heavy metal pollutants that pass through a dredge.
Dredgers do not add any pollutants to the waterway, the pollutants are
already there and are being continually disturbed and spread around by
natural high water processes. With this dredging ban, the removal of those
heavy metal pollutants has stopped, and the huge positive impact of the
removal of those pollutants from our water ways and from being able to enter
the food chain has stopped also. 

It should be mentioned that the non stop legal attacks by those self serving
few have continued even after there was an agreement made in a previous
legal case that these people would stop their attacks, and in fact they have
not honored that agreement.

That those self serving few and their supporters have in fact used nothing
other than puffery and outright untruths to create an emotional response in
people to help support their cause based on "saving the environment" when in
fact their actions have actually stopped the environmentally positive
benefits of suction dredging, of which there are many. 

A prime example is the opponents of dredging like to say that dredging can
harm fish eggs. Of course that is true, and they gain great support for
their cause from others concerned about the environment when they say things
like that, but what they fail to mention is that under the regulations
imposed by CDF&G, dredgers were never allowed to dredge when the fish eggs
were present. There are seasonal restrictions that were already in place to
prevent that harm. All of the "scientific points" the opponents of dredging
use for the emotional response to "save the environment" have been taken
into consideration in the regulations already imposed on this industry by
CDF&G. 

I would like to make this point one more time, the opponents of dredging
have been unable to provide one bit of scientific proof in any court of law,
that dredging as was regulated by CDF&G was causing any harm to any
protected species. The only thing they have been able to do in court is make
hypothesis that there "might" be harm being done. That statement could in
fact be made against anything anybody does in all aspects of life. 

This ban in fact is against state and federal law, and was imposed without
due process, and that there are currently multiple legal cases pending on
this issue.

Call a spade a spade, but don't blame an industry group trying to defend
itself against non stop attacks for the actions of those who refuse to stop
attacking.

This is my opinion of what has happened here. I for one think that the New
49ers should be applauded for their efforts.

Mark Chestnut

 - Mark Chestnut (2/21/2010 1:18:57 PM)

Good Article

Your article is good but not go into the depth it needs at describing the
failure of CDFG to do what was ordered of them in the beginning. Had they
done their job, much of this litigation could have been avoided or a
coordinated approach could have taken place. 

When a bully is caught, everyone wants to point the fingers at the other
guy. 

The Karuk Tribe is not a problem. Only some of the self chosen people who
are running them ruff shod are. 

The miners are not a problem. 

Only some of the County, State and non elected officials that have personal
agendas against them are.

The State of California is in terrible hurt because of the way the
legislative agents have mismanaged their jobs. 

Good honest people are bailing out of the state every day because of the
poor state management.

By the time people wake up and change the state reps, it may be too late. It
is time to put the blame in the right places.

Thank You

Byron Leydecker, JcT, Chair

Friends of Trinity River

PO Box 2327

Mill Valley, CA 94942-2327

415 383 4810 Land/Fax (Call first to Fax) 

415 519 4810 Mobile

bwl3 at comcast.net

bleydecker at stanfordalumni.org (Secondary)

www.fotr.org <http://www.fotr.org/>  

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