From the Pick and Shovel June/July 2014 issue
By Brad Jones
More than 120 California gold miners packed a courtroom in San Bernardino County last month hoping to see the end of a five-year long statewide ban on suction-dredge mining.
The Superior Court of California hearing May 1 focused on the legal question of whether or not state legislators have violated the Supremacy Clause of the U.S. Constitution by prohibiting what the federal law allows on federally managed public lands.
Attorneys for mining advocacy groups Public Lands for the People and the New '49ers argued that the state has overstepped its authority, while state attorneys and those representing the California Department of Fish and Wildlife, Center for Biological Diversity and the Karuk Tribe, contended the state is within its right to regulate mining.
Moratorium or prohibition?
New '49ers attorney James Buchal and PLP attorney David Young argued that the state does not have the authority to prohibit mining, which PLP contends the state has done by imposing a seemingly endless moratorium. The two-year "moratorium" has dragged on for five years since Senate Bill 670 was signed into law by Gov. Arnold Schwarzenegger in 2009. The dredging ban has since been extended under Assembly Bill 120 and SB 1018, signed by Gov. Jerry Brown.
The ban was originally set for two years to allow the California Department of Fish and Wildlife ample time to accomplish three conditions needed to end the moratorium:
1. Conduct a new Environmental Impact Report on the effects of suction dredge mining;
2. Draft new suction dredging regulations and establish a new permitting process and fee structure; and
3. Require Fish and Wildlife to fully mitigate all significant environmental disturbances from dredging.
Not only are the suction dredge regulations far more restrictive, but proposed fees are much higher for permits and the state wants to limit the number of permits issued to 1,500. One of the state restrictions calls for limiting the intake diameter of dredge hoses to four inches.
War on dredging began in the 1960s
The state has steadily clamped down on suction dredge miners since the 1960s to the point of the latest ban. Prior to the '60s, there was no size limit on the diameter of dredge hoses. In 1994, the state placed an eight-inch limit on dredges, but there was no limit on the number of dredging permits that could be issued by the state.
Many of today's miners want the state to scrap the notion of limiting the number of dredging permits because under the law, everyone has the right to mine — not just the 1,500 who would get them on a first-come, first-served basis under the proposed Fish and Wildlife regulations. Others reject restrictions that call for nothing larger than a four-inch dredge because many dredgers were using six-inch and eight-dredge dredges before the 2009 ban was imposed.
The permitting process has been delayed because in 2011 state legislators voted to approve trailer bill AB 120, which ordered Fish and Wildlife to set fees for permits. However, Fish and Wildlife has since indicated that any changes to the current fee structure are beyond their authority and will require legislative action.
On July 27, 2012, the state legislators again prohibited suction dredge mining with SB 1018, which eliminated the June 30, 2016 sunset provision in AB 120.
Federal preemption
Citing another case involving the state of California and Granite Rock Co., state attorney Marc Melnick argued that the court in the Granite Rock case found that state regulations on mining were "devoid of any intention to preempt federal law ...
"We think that ends this case," Melnick said.
Young countered that argument, saying, "Granite Rock might as well be the Rock of Ages. What we have here is an absolute prohibition. What Granite Rock says is you can regulate, but not prohibit."
Melnick disagreed. "It's not a prohibition; it's a moratorium," he said, evoking groans and guffaws from the gallery and prompting Judge Gilbert Ochoa to ask the miners to refrain from any further outbursts.
The statement didn't seem to set well with the judge either, who later grilled Melnick on the issue.
"Let me just ask you this: What is the difference between a moratorium and a prohibition?" Ochoa asked, implying that a moratorium is a temporary ban with a time limit and prohibition is indefinite. "When does it end? ... Can you give me a date?"
Somewhat shaken, Melnick replied "No, Your Honor."
"That sounds to me like an outright prohibition, if you can't give me a date," Ochoa said. "Could it go on for years?"
"Conceivably, Your Honor, but I don't think so," Melnick replied.
"How long has this litigation been going on?" Ochoa asked.
"Since 2005," Melnick said.
"That's a long time," said Ochoa. "You guys have filed a lot of paperwork on this stuff."
In countering, Young complimented Ochoa for cutting to the chase.
"I think Your Honor has come to the heart of the matter. When is it going to end? When, when, when? Nobody seems to know ... And, unfortunately, these people don't know," said Young, motioning to the crowd of miners.
Buchal concurred, adding that the when state removed the "sunset clause" of the moratorium in 2012, it changed the nature of the temporary ban to a prohibition that has left miners without any light at the end of the tunnel.
"We're looking at this in the context that people have federal rights," he said.
Permit limits called 'lottery'
Buchal also panned the state's plan to limit the number of dredging permits to 1,500, calling it "a lottery."
"It's not a lottery; it's first-come, first-served," Melnick countered.
"The environmentalists could show up the night before and buy all 1,500 permits," said Buchal, later contending that the 1,500 number is arbitrary and the permitting process is dilatory (intended to cause delays.)
The state has created a Catch-22 situation by requiring permits, but then not granting them, he said.
Fish
Attorneys representing the Karuk Tribe claimed that dredging is harmful to fish and that miners are discharging mercury into the waterways.
But, Buchal pointed out that the study touted by the Karuk Tribe on the effects of dredging on fish amounted to running fish eggs through a dredge hose in a laboratory and then concluding, 'Yes, dredging harmed the eggs.'
"That has never happened because for decades they kept miners out of the water when the fish were spawning," Buchal said.
Mercury
The lawyer for the Center for Biological Diversity, Jonathan Evans, who was not present in the courtroom but was on conference call, accused miners of discharging mercury into rivers and streams, when they disturb the sediment on the river and stream beds.
Young dismissed the claim stating the miners do not add mercury but that most of the mercury is washed down from the Sierra Mountains through natural erosion, the same as gold and other minerals.
"Your Honor," Young said, shaking his head, "we remove mercury ... we actually take it out of the water."
Other methods of mining
The state, Fish and Wildlife and CBD attorneys argued that while dredging might be the miners' "preferred" method of mining, it's not the only means of mining.
Buchal accused the state and Fish and Wildlife of trying to minimize the importance of dredging, by far the most productive means of gold mining, to miners.
"Their argument seems to be 'Well, you can still go out and do something with a pan.' ... That is not what this case is about," Buchal said.
"The fact that someone can do something by hand is not an industry," he said, adding that not only miners but small-scale-mining equipment manufacturers, distributors, mining supply stores and small mining communities have suffered financial impacts because of the suction dredge mining ban.
By extrapolating the same logic, it is possible for miners to dig with a spoon, but not reasonable, Buchal said.
Federal preemption
Young stressed that the core issue facing the court is that under the law, the state can't prohibit what the federal government allows.
"That goes right to the heart of federal preemption," he said.
The Supremacy Clause, a provision in Article Six of the U.S. Constitution, Clause 2, establishes the U.S. Constitution, federal statutes, and U.S. treaties as "the supreme law of the land." The text provides that these are the highest form of law in the U.S. legal system, and mandates that all state judges must follow federal law when a conflict arises between federal law and either the state constitution or state law of any state.
The PLP maintains that the state has violated the congressionally granted rights accorded to all American citizens to prospect and mine on publicly owned, federally managed lands, known as public lands, in the western United States under the federal Mining Law of 1872 as amended.
Judge seeks compromise
When Ochoa brought up the issue of compromise and working with state to arrive at solution, Buchal reminded the court that the reason the miners have been fighting the dredging ban for the past five years is because state legislators would not listen to their concerns in the first place.
"They are not going to help us ... It's never going to happen that the state legislators will help us," Buchal said. "The light at the end of the tunnel is a train coming the other way."
Court ruling delayed
As the 90-minute open-court hearing concluded, Ochoa stated he would make a ruling "in a couple of weeks," but that he wanted to meet with the plaintiffs and attorneys in his chambers. The closed-door session, which lasted about 45 minutes, ended with Ochoa instead ordering a Mandatory Settlement Conference set for June 24, with the understanding that the conference could last for several days.
June 24 conference closed to the public
The court-ordered Mandatory Settlement Conference is closed to the public, which means miners cannot attend, but only plaintiffs named in the lawsuits and their respective attorneys.
If the state, stage agencies, environmentalists and miners can't arrive at a settlement, then Ochoa could either hand down a ruling or set another court hearing.
The 'fully mitigate' clause
PLP President Jerry Hobbs said the most troubling requirement in the state legislation is a clause that requires the CDFW to "fully mitigate," all significant disturbances from suction dredge mining, which even the California Environmental Quality Act does not address.
"It's impossible to fully mitigate every significant impact from dredging or any other method of mining — whether it's some turbidity in the stream, the sound of the engine or stepping on a twig or moving dirt," Hobbs said "Even the California Department of Fish and Wildlife officials have admitted they can't 'fully mitigate' or comply with Senate Bill 1018."
Hobbs alleges that the language was deliberately included in the bill to prevent dredgers from ever getting back in the water.
"And yet, the state continually argues it's not a prohibition," he said.
Mining and the economy
Last August, Ochoa denied a preliminary injunction filed by PLP in an attempt to get dredgers back in the water. The judge ruled that miners had not suffered irreparable harm under the dredging ban. The decision did not set well with tens of thousands of GPAA members and perhaps hundreds of thousands of gold prospectors and miners nationwide.
Hobbs, who is in constant contact with miners across the state, begs to differ, citing many accounts of dredgers who have fully supported themselves and their families or supplemented their incomes by gold mining.
"The dredging ban is not harming the environment, but it is hurting miners and the economy." Hobbs said.
One-sided science
The PLP is not alone in its complaint that the state has not funded an accurate study that looks at the pros and the cons of dredging. The Western Mining Alliance as well many other pro-mining groups have asked the state government to conduct an independent scientific study on the effects of dredging, but to no avail.
Previous studies have shown that dredging does not pose a significant impact on fish or fish habitat, yet that is an argument radical environmental groups have used to shut down dredging.
Hobbs said the government is bound by law to take a "hard requisite look" at the benefits of dredging as well as the environmentalists' claims that suggest it has a negative impact on fish, especially when it has imposed a ban on suction dredge mining.
It is well known that miners remove lead fishing weights, mercury, nails and other scrap metal trash from rivers and streams when they dredge. Dredging also creates better fish habitat by cleaning silt-covered and loosening compacted gravels which makes it easier for fish to spawn — much like cleaning the bottom of a home fish aquarium.
Yet, environmental groups have lobbied against dredging, claiming it harms fish and fish habitat. However, some of the same environmental groups have applied for government grants to dredge for mercury — and received funding — with little or no mention of any effect on fish. The Lake Combie mercury removal project in California is a typical example of millions of tax dollars granted to environmental groups to use large suction dredges for mercury removal, something miners do for free in the process of mining for gold.
Brad Jones is the Managing Editor/Communications Director for Gold Prospectors Association of America and the Lost Dutchman's Mining Association. He can be reached at bjones@goldprospectors.org.
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