2012 K.M. Letter

Subject: Public Comment, Suction Dredge Program, Revisions to Proposed Amendments

March 4, 2012
California Department of Fish and Game,

Please add these comments to the official record regarding the Feb. 17, 2012 release of the proposed regulations. These are in addition to my prior comments.

In the email text of the “Interested Parties” notice of Feb. 17, it is stated that “The proposed regulations are intended to avoid and substantially lessen to the extent feasible any significant impacts from suction dredging authorized by DFG. Compared to the regulations provided for public review in February 2011, the revisions provide more efficient permit management, account for further evaluation of species distributions and life histories, and make related adjustments to the proposed regulations to ensure that authorized suction dredging is not deleterious to fish.”

There are real problems with the revised and proposed regulations. In essence, the DFG has selected the Reduced Intensity Alternative (RIA). This is a very deceptive and intolerable bait and switch determination by the DFG. After much public discourse and good faith comments, based on facts, the DFG has shown that they are not to be trusted. What the DFG is trying to cram down our throats is unreasonable and unacceptable. According to Title 14, CA Code of Regulations, Amend Sections 228 and 228.5, Suction dredging, Initial Statement of reasons it states, at RIA, pg. 9, “This alternative (RIA) was dismissed because CDFG has determined that the proposed amendments are sufficient to avoid ‘deleterious effects to fish’ without the need to impose further restrictions.”

How do you avoid and substantially lessen to the extent feasible any significant impacts when even the original EIR stated that the RIA was dismissed because CDFG determined that the proposed amendments are sufficient to avoid ‘deleterious effects to fish’ without the need to impose further restrictions? Why is there a need to lessen something that is sufficient? What is the DFG trying to avoid with unnecessary revised, further restrictions? It appears that the real reason is to just impose further restrictions and ultimately eliminate suction dredging altogether. ! There is no need for “related adjustments” to the proposed regulations in the manner that the DFG is seeking. The original proposed regulations found that dredging is not deleterious to fish, as have previous EIRs. In the EIR, no further restrictions are needed, but somehow that is exactly what the DFG is doing. It flies in the face of all credibility! The DFG has made a mockery of the entire process.

That the DFG believes that 1500 permits allows for more efficient permit management is indicative in the DFG’s failure to follow the mandates of the 5653 code. I do not see anywhere in the 5653 code that “further evaluation of species distribution and life histories” has anything to do with a dredge permit or the program itself. This is absurd. There is no provision that ongoing studies is the purpose of the program, certainly not to be paid for by onerous regulations that essentially put suction dredgers in a constant parole methodology.

Eliminating the rights of people to legally exercise their rights granted by the Mining Laws and of the state, in open waters, when that operation has been shown to not be deleterious to fish is overregulation and an abuse of power and discretion.

I don’t believe that the 5653 code allows for any limits on the amount of permits that can be issued. The only restraint on any number would be or should be if the waters aren’t open to dredging, based on factual science, not potential effects or hysteria. The code is quite specific in its mandate that the DFG shall issue permits to applicants in all open waters. Open waters are determined by being open because operations within those waters will not be deleterious to fish. ! All the DFG is doing by limiting permits to 1500 is being discriminatory and violating peoples legal rights.This must be changed.

And to deem that revisions to the proposed regulations are appropriate is inappropriate in every common sense dictate known to a fair and reasonable process. To only give the public two weeks to respond to these draconian, revised mandates when good faith efforts have been ongoing for a long time, is showing that the DFG does not follow their own mandates. They certainly do not follow rules of fairness. I request an extension of time be granted, to all participants, to respond to the new, revised proposed regulations. I also request that the DFG supply data to substantiate their revisions. This new proposal was not commented at in any length because the proposed regulations were the ones that were addressed, because the other alternatives were not chosen.

The DFG has drastically changed the game. Rivers such as Alameda Creek, above 300 ft. being closed when being previously open is quite a change. With only two weeks to review the changes, I can’t possibly address every change, and there are quite a few. For instance, the Smith River, Middle Fork in Del Norte County or the South Fork Trinity River in Trinity Co., going from being open to being closed is a substantial change. How in the name of factual evidence is the public supposed to accept these kind of 180 degree switches? It is unacceptable to do research and then arbitrarily discard reason. There are so many additional closures that it has made the entire process a sham…

Why has the DFG not provided supporting evidence and documentation for the revisions, so that reasonable people can discern the facts? The public is supposed to be part of the process. This is not due process. The DFG is being arbitrary and capricious in their decision making process.

The DFG proposed regulation at “(3) No person may shall operate the nozzle of a suction dredge and remove material within three feet of the lateral edge of the current water level, including at the edge of instream gravel bars or under any overhanging banks.”, is not a regulation that is based on the deleterious to fish mandate. Let’s say my river is 15′ wide in June when I might start dredging. By your standard, then, I could dredge within a 9? median, because DFG believes it to be deleterious to fish to dredge within those 3′ barriers. But then, by August, the river level drops, as it does and now all of sudden, areas open to dredging are not open anymore. It is not deleterious to fish to dredge into an area where fish don’t exist, that were open before. The same gravels that contained gold, that I was able to dredge previously, would now be closed…. and those areas were not deleterious to fish…. that is supposed to be the mandate, not some arbitrary 3′ fence. This regulation proves that the ‘deleterious to fish’ mandate of the 5653 code is being abused.

The stipulation at proposed regulation (8), that “No person shall import any earthen material into a stream, river or lake.”, would certainly provide that the limitation on dredging outside of a river channel would preclude the necessity for the 3′ lateral edge provision. Dredging within 3′ of a lateral bank is dredging river material, not importing earthen material into a stream. Much of the gold found in creeks is where areas of velocity calm down and this just happens to be, quite often, within that 3′ lateral edge of a creek. By placing a prohibition on mining such an area, many mining claims would become in essence, undredgeable and thus invalid according to federal law. I can only presuppose that this is the inevitable result DFG is trying to attain.

The results of spatial scales demonstrate the lack of science to support this 3′ lateral edge provision. The EIR Table 4.1-1 shows that dredging doesn’t have significant impacts, only “maybe” impacts or “unlikely” impacts. Any impacts are of such short term duration that they are less than significant. The facts of actual dredging should play this out… dredgers don’t dredge the same area year after year… they have removed any potential gold from that site and they move on elsewhere. Dredgers are not making year in, year out impacts on the same site. These sites redefine themselves in a very short period of time. This is confirmed in the EIR at

 ”Geomorphic Recovery at Dredging Sites, “The concept of geomorphic recovery has been applied to the study of suction dredge mining sites by several researchers. These researchers observed that erosive scour holes, hand piled tailings, or downstream sediment deposits caused by suction dredge mining (during the relatively low?water summer conditions of California rivers) were removed following bed?mobilizing (or recovery) flows that occurred during the following fall, winter, or spring.” Geomorphic recovery is not deleterious to fish, it is an ongoing, natural process. And even according to the summary, Best Management Practices (BMP?s), if utilized, would backfill any such area.

Bankfull discharge is a general hydrologic concept, according to the EIR. Any alluvial discharge created by a suction dredge does not exceed any current capacity, it only displaces such from point A to B. Any such movement of gravels is not an import of materials, rather only a change of location of those materials. Mother nature discharges far more yearly and without regulations. And, concept after concept regarding this discussion, including Disturbance of an Armored Layer are full of “potential” to degrade or effect, not a deleterious to fish criteria. Loosening an armored layer of a midstream gravel bar, as admitted in the EIR, “While disruption of an armored boundary layer may not significantly alter the total sediment load within a given reach, it may….” again, speculation not supported by effect. The fact that a dredger would remove the armored surface of a gravel bar and that feature would then migrate downstream is only replicated by nature, on far larger scales…it is a temporary, less than significant impact. The findings of 4.1-20, “As such, potential sediment redistribution impacts caused by dredging (including potholes, tailings piles and other suspension/deposition events) conducted in compliance with the proposed regulations are considered to be less than significant.” This is true of either a lateral or instream requirement, less than significant impacts would occur. The 3′ lateral and 3′ instream gravel bar requirements must be removed, as they do not comport to the actual findings.

And at discussion, on 4.1-21, the undercutting of streambanks is again full of potential effects, when in fact the discussion also states, “Coarse woody debris (CWD) is recruited naturally into a stream through episodic events such as a wind storm or fire, or gradual events such as tree mortality or bank failure through channel migration (Bilby and Bisson, 1998). Downed trees may provide backwater habitats where quiet reverse flows (eddies) are found…” And, “While the presence of CWD in a stream is often a habitat benefit, the mechanical undercutting and erosion of streambanks (as a product of suction dredging) is not considered a preferred mechanism for generating CWD supply.” So, we have here another example that shows that a dredger cannot replicate nature, only mimic it to a less than significant degree. Here we have someone stating that suction dredging is not the preferred mechanism for moving material. Doesn’t sound very scientific, but rather an emotion based hypothesis.

To back this up further, look again at pg. 4.1-22, “The occurrence of an undercut bank alone is not a meaningful indicator of instability,…” So, a bank naturally undercut is not an indicator of instability, but one made by a dredger is? The findings don’t back up the regulations… “However, due to the limited extent of potential bank erosion and instability caused by suction dredging, this impact is considered to be less?than?significant when considered statewide.” Dredging into an alluvial streamside bank will not cause significant impacts. I am not advocating wanton destruction of riverside banks, but reasonable regulations need to be in place, not onerous ones, ones not backed by the facts.

I don’t necessarily have a problem with not being able to move rocks or boulders outside of the channel, but some necessity should be granted to move them, and the 1602 process seems to support this. If moved outside, temporarily to obtain access to an area, they can be moved back. For some reason, the DFG’s blanket supposition that all the sides of streams are chalk full of trees and root wads does not meet reality. Much of the river that I have dredged in contains little to no vegetation, and even then mostly alders and willows, weeds that grow at enormous rates and are readily displaced by nature… and they come back from nature very quickly.

Under Destabilization of Channel Profile, pg. 4.1-23, again the finding is “Less than Significant”, yet the DFG continues to abuse the findings to accomplish their revisions. This is revisionist history in the making… it is unacceptable to have such unnecessary environmental restrictions placed on law-abiding citizens when the evidence clearly shows that the impacts from suction dredging are less than significant… they will not be deleterious to fish. By having reasonable regulations, i.e., limiting the amount of dredges on a claim, would lessen any impacts on smaller streams. But by essentially closing all streams that are 6 feet or less across, and in essence many more of 8-10 foot across (the limitation making them unprofitable), is in its very nature a taking without just compensation. This state power grab of eminent domain is not adhering to the constitutional limitations they must comply with.

The EIR at this junction cites multiple operators on a creek in Trinity Co. having a negative effect on Dutch Creek. Well DFG, follow the law, cite these people, don’t make everyone else fodder because of their carelessness or lack of adherence to the rules. I should not have to pay for the sins of the Father. The findings don’t back up the 3′ requirement, “…in most cases geomorphic recovery processes would likely reset and reestablish the channel form within 1 to 3 years following dredging activities. It is therefore concluded that flow obstructions and diversions associated with suction dredging would have a less than significant impact on the geomorphic form and function of rivers and streams.” (pg. 4.1-25).

The fundamental thrust of the DFG’s EIR is that potential effects may, could, might, etc., have effects on fish. The analysis is flawed in that it must be deleterious to fish.

The Dept. of Fish and Game has refused to work with the dredge proponents in working out reasonable solutions to the basic elements. We have proposed acceptable, reasonable and rational solutions to move this important industry forward in helping this weakened economy. I think most dredgers don’t have a problem with suction dredge nozzle requirements, if they have the opportunity to access a more commensurate size of nozzle adequate for their size of river and type of deposit. Most won’t argue that limiting the amount of dredges on any one claim/ section of river isn’t beneficial to all, case by case. Most won’t argue that a spill-proof gas container should be used or that oil changes/additions should be performed onshore. Most won’t argue about dredging into wooded banks or removing trees imbedded in banks… some logical things. Most won’t argue that they should be allowed to dredge during hours equivalent to other users of California lands and waterways. Most dredgers won’t argue that they should use Best Management Practices; we all want to maintain our clean environment and use acceptable levels of behavior. Hell, I didn’t like it when a game warden came on to my claim, gun on hip, and told me I shouldn’t be dredging there. But I showed him my plan of operations and dredge permit that he himself had signed and he got indignant, stating that if if were up to his boss (head of DFG at the time), we wouldn’t be allowed there. But, I got over it quickly, I was in the right, had all the appropriate documents, had onsite inspections performed and was doing things respectfully, as they should be done. It certainly was not a BMP on the part of the game warden.

But that is really what is at the crux of this situation. All dredgers are being relegated to being classified as recreational opportunists… I have been and want to again be a commercial, full-time dredger. I have had validity tests performed and passed, patent exams performed and passed. I have had onsite inspections performed and passed, I have had special suction dredge permits issued, stream alteration permits granted, plans of operations authorized, won in court to keep mining structures, won administratively to pursue my legal ambitions to lawfully mine. I have pursued every lawful course to do things properly, including being a steward of the land,with letters from the Forest Service to document this. I resent the DFG’s attempts to portray me as guilty before being charged with a crime.

I and most dredgers resent being discriminated against by a bureaucracy that has never spent a day dredging for gold on a valid mining claim. We resent having to be the only class of citizens who have to have a secondary containment system for operational equipment on a waterway within the state of California. We resent having limited number of permits for a state the size of California. We resent having limited hours of operation when no other class of the citizenry are mandated such. We resent having to have Report Cards, when the 5653 code specifies that all that information be submitted at the time of application. We resent the utterance in the proposed regulations that we may argue extenuating circumstances at the Statement by Permittee phase of the enforcement provisions. We resent that this process has been stolen by the agency in revising the proposed regulations in such an onerous way. We resent that the EIR constantly references the proposed regulations, when the regulations were supposed to come from data supplied by the EI. It appears that the proposed regulations came first, then the supposed supporting evidence came second. It was supposed to be the other way around… factual data first, then proposed regulations. Unbelievable in such a transparent society that we have today that an agency thinks that they can create a process and then control the results. This isn’t due process, it?s an illogical pursuit by an agency bent on criminalizing legal activities.

This agency was supposed to complete data required by the court for three rivers in Northern California, and by taking on the entire state they have created a nightmare for working Californians. The agency sides with a group who kill fish, which last time I looked was pretty deleterious to those fish. It’s time that the DFG stood up and become responsible to all those affected. I sure don’t see that happening in the current regulations. DFG has taken my life times of dreams and hard work and has killed them. It is the agency that is affecting deleterious decision making. This must stop. Correct the known deficiencies and let us move on with our lives

K******************** M*******************

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