March 5, 2012
Suction Dredge Program
Revisions to Proposed Amendments
Department of Fish and Game, Northern Region
601 Locust Street
Redding, CA 96001.
Re: Comments re Revisions to Proposed Amendments
(1)”Pursuant to that authority, the Department finds that suction dredging subject to and consistent with the requirements of Sections 228 and 228.5 will not be deleterious to fish.
CF&GC section 5653 allows a permit to be issued only if the Department can determine that the “operation will not be deleterious to fish.” Laws may not unfairly discriminate. In this case, S.D. mining is being held to a standard of “not deleterious to fish.” According to Mirriam Webster’s dictionary, “deleterious” means harmful. Fishermen can kill fish and that is ok. Any other group can even harm an endangered species, but not be in violation because the standard is “kill.” This standard applied to S.D. mining is glaringly arbitrary, capricious and discriminatory.
In the vein of the “precautionary principle,” note that the standard is in the negative. It assumes that that the activity is deleterious unless it can be proven that it is “not deleterious.” In America, it is a doctrine that people are presumed innocent until proven guilty. There is a standard that one has the liberty to use ones private property unless such use causes a substantial injury to general public health and safety. The standard in the current code flies in the face of justice.
(2) Number of Permits. The Department shall issue a maximum of 1,500 permits annually, on a first-come, first-serve basis.
This is completely arbitrary and capricious. Mineral rights are private property. This arbitrarily puts a cap on the number of provate property owners allowed to use their property in a year. There is no possible justification for such an arbitrary number statewide .
The Department cannot impose regulations that interfer with individual’s rights to engage in a lawful business or trade. It is a well-known adage that the power to regulate is not the power to destroy. Regulation of a business activity does not contemplate its destruction or restraint (prohibition for a period of time,) but rather places operation within certain bounds. A state agency may impose reasonable restrictions upon the conduct of such activities so long as the regulations have a reasonable relation to a legitimate public purpose (general public peace, health, morals, welfare); are reasonably exercised, (within constitutional limitations, not arbitrarily, and not in such a manner as to restrain trade or to unfairly discriminate.) Under the guise of protecting the public, the regulation may not arbitrarily interfere with, or unnecessarily restrict or act in a confiscatory manner to a lawful business or occupation (e.g. arbitrary and capricious.)
There is also no safeguard to prevent permits from being purchased by those without true intention to dredge in order to make them unavailable to legitimate miners. This also fails to take into account that the federal Mining Act allows for public mineral discovery and development. The state can not arbitrarily restrict a federal statute or a miner’s right to perfect his claim in such a way.
(3) Nozzle Restriction. No suction dredge having an intake nozzle with an inside diameter larger than six four inches may be used unless:… (A) The Department has conducted an on-site inspection and approved a larger nozzle size in writing; the maximum inside diameter of the intake nozzle is no larger than six inches, or eight inches where allowable under Section 228, subdivision(jk)(1)(E);
The proposed 4 inch ring restriction. This size nozzle is not suitable for commercial mineral extraction. It is used for hobbiests and for sampling. The effect of this restriction is to categorically prohibit commercial suction dredge mining in California as it renders commercial extraction non-viable. Commercial miners would be unable to move enough material to cover the costs of permits and inputs into the enterprise. This is an unreasonable regulation of industry. Regulation was never intended to destroy an industry.
(4) Pump Intake Screening. The intake for the suction dredge pump shall be covered with screening mesh. Screen mesh openings shall not exceed 3/32 inch (2.38 mm) for woven wire or perforated plate screens, or 0.0689 inch (1.75 mm) for profile wire screens, with a minimum 27% open area.
The 3/32 Screen on Intake is unreasonable and unwarranted. There is absolutely no evidence of proximate cause that suction dredging has ever entrained fish or aquatic life. The diameter of the hole would constantly clog with floating debris and defeat the functionality of a suction dredge.
(5) Motorized winching or the use of other motorized equipment to move boulders, logs, or other objects is prohibited, unless: (A)The Department has conducted an on-site inspection and approved the proposed suction dredging operations in writing;
Mining can be a dangerous enterprise. Winching of rocks is some times necessary as a safety measure to prevent crushing or dangerous mining conditions. It is not known ahead of time when winching will be necessary until the miner is presented with the need to move a rock to follow a gold-bearing fracture. In addition, although some younger miners might possess the strength capable of hand winching, most miners do have such strength. Will this create a halt of mining while an appointment for an inspection is arranged? Will there be a fee for such an inspection? Does an inspection need to happen each time a winch is used? This seems unreasonable and impractical.(6) 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.
This would essentially exclude most small streams from suction dredge mining and effectively “take” private property in many mining claims by rendering them non-minable. The restriction is far in excess of the proportionate impact that mining would have on riparian areas.
CA DFG regulations fail to meet the standards of “essential nexus” and “rough proportionality” set forth in Nollan v. California Coastal Commission, 483 U.S. 825 (1987) and Dolan v. City of Tigard, 512 U.S. 374 (1994). In these decisions, the Supreme Court of the United States indicated that the conditions/mitigations/exactions required of an individual must be specifically related to an identified injurious activity and roughly proportionate to that impact. CF&GC 2052.1 also provides that any required mitigation measures or alternatives to address a particular impact on a candidate, threatened or endangered species be “roughly proportional in extent to any impact on those species that is caused by that person.”
Regulations are governed by rules of “proximate cause.” There must be a substantial forseeability or predictability that specific actions would cause injury or harm within an uninterrupted period of time. There is also a quality of direct causation – no intervening causes between the original act and the resultant injury. In addition, the act itself must be voluntary. It must be the primary act from which an injury results as a natural, direct, uninterrupted consequence and without which the injury would not have occurred. The action is not the cause of the injury if the injury would have occurred without the action.
The injury or harm caused by an activity being regulated is also held to a standard of “substantial,” significant, serious or appreciable injury as well as being a substantial factor or contributor to the injury. (The action must have been a significant factor enough to have independently caused the injury by itself.) This would be contrasted with injuries/damage that are “de minimis” or of minimum importance – something that causes an impact that is so little, small or insignificant that the law will not consider it.
If one can point to evidence of a direct cause and effect relationship between a specific activity and alleged prohibited consequence, then it is an activity which can be regulated. In the case of S.D. mining, there are no definitive studies that can prove proximate cause to death or even substantial harm to salmon. Every one of the studies available state that impacts to the resources are unsubstantial and very temporary.
CA DFG cannot just arbitrarily establish a prohibition on use. People have a fundamental natural right to liberty and property subject to the qualifier that property use cannot harm general public health and safety. The law must have a legitimate relationship to proximate cause. It certainly cannot presume harm unless proven otherwise as the “not deleterious” standard currently does.
Article 1, Section 1 of the Constitution of the State of California states:“All men are by nature free and independent, and have certain unalienable rights, among which are those of enjoying and defending life and liberty, acquiring, possessing and protecting property; and pursuing and obtaining safety and happiness.”
In January 1993, the Siskiyou County Board of Supervisors Passed Resolution 93-19 pointing out that the State must evaluate possible takings of the private property or private property rights of the citizens of Siskiyou County prior to the implementation of any action, decision or regulation effecting said citizens; to formally evaluate and avoid the risk of unanticipated private property takings and investment backed expectations; and that the property owner shall be justly compensated for losses as mandated by the Fifth Amendment of the U.S. Constitution and Article 1, Section 8 of the Constitution of the State of California without undue delay.
Siskiyou County Resolution 93-19 states:
“WHEREAS, the U.S. Supreme Court in its decision under First Evangelical Lutheran Church of Glendale v. County of Los Angeles, 107 S. Ct. 2378, 2386 (1987) established that government action resulting in temporary or permanent interference with any of the freedoms embodied in an individual’s personal property rights may constitute a “taking” under the Fifth Amendment with a Constitutional obligation to pay just compensation.
“WHEREAS, the U.S. Court has ruled that governmental action resulting in physical intrusion or invasion on property may constitute a compensable taking of private property in Loretto v. Teleprompter Manhattan CATV Corporation, 458 U.S. 419, 426 (1982.)
“WHEREAS, the U.S. Supreme Court in Lucas v. South Carolina Coastal Commission, cite omitted (1992)[ 505 U.S. 1003, 1027 (1992)] ; and Nollan v. California Coastal Commission, 107 S.Ct. 3141, 3146 (1987), citing Agins v. Tiburon, 447 U.S. 255, 260 (1980); has deemed governmental regulatory conduct that places a burden on property rights to constitute a compensable takings in instances where:
1)Regulations do not substantially advance legitimate state interests;
2) Regulations deny an owner economically viable use of his land;
3) Restrictions are disproportionate to the extent in which the property use contributes to the overall problem for which the regulation is imposed to redress.”
The Mining Act of 1872 is a unique law that vests an individual with the right to prospect and extract locatable mineral upon public lands. This right upon location, is a grant by Congress which carries with it a property right protectable by the Constitution (5th Amendment). This location is a severance from ownership from the U.S. to a private party (subject to BLM validity exam) of a locatable mineral estate. This ”location” or claim acts as a relinquishment of land by the United States to the private sector to perfect to full patent if the individual wishes. The Mining Act of 1872 is a “Location System” and not a “discretionary grant system”.
Obviously, a mineral claim is a valuable property right. By imposing a partial prohibition on the use of that property, the state has temporarily physically taken the property, which is subject to reimbursement of just compensation for the takings.
(7) No fuel, lubricants or chemicals may be stored within 100 feet of the current water level.
This is impractical and impossible in many locations. The prior 1994 regulations recognized this and found that the impacts of fuel and oil by miners were less than significant.
(8) Suction Dredge Use Classifications. For purposes of these regulations, the following classes of suction dredge use restrictions apply in California’s lakes, reservoirs, streams and rivers as specified: (1) Class A: No dredging permitted at anytime. (2) Class B: Open to dredging from July 1 through August 31. (3) Class C: Open to dredging from June 1 the fourth Saturday in May through September 30 October 15.(4) Class D: Open to dredging from July 1 through January 31 September 15.(5) Class E: Open to dredging from September 1 July 1 through January 31 September 30.(6) Class F: Open to dredging from July 1 December 1 through September 30 June 30. (7) Class G: Open to dredging from September 1 the fourth Saturday in May through September 30. (8) Class H: Open to dredging throughout the year.
Also, Operating hours restricted to 10 a.m. to 4 p.m.
The Department has imposed regulations that interfer with individual’s rights to engage in a lawful business or trade in a profitable manner. It is a well-known adage that the power to regulate is not the power to destroy. Regulation of a business activity does not contemplate its destruction or restraint (prohibition for a period of time,) but rather places operation within certain bounds. A state agency may impose reasonable restrictions upon the conduct of such activities so long as the regulations have a reasonable relation to a legitimate public purpose (general public peace, health, morals, welfare); are reasonably exercised, (within constitutional limitations, not arbitrarily, and not in such a manner as to restrain trade or to unfairly discriminate.) Under the guise of protecting the public, the regulation may not arbitrarily interfere with, or unnecessarily restrict or act in a confiscatory manner to a lawful business or occupation (e.g. arbitrary and capricious.)
Change in season of use is unnecessary. Current restrictions have effectively limited suction dredge mining down to a small window of activity to protect the environment. Further restriction is unreasonable.
(9) According to the new rules, 28 rivers will be closed in Siskiyou County.
The regulations fail to take into consideration the impact on small businesses, local economies and cummulative impact of environmental regulations on Siskiyou County and its people. (See considerable amount of economic data previously submitted.)
10 Under the CA Administrative Procedures Act you are required to submiot the following and provide a copy on request. Please provide me with a copy.
(a) Prepare, submit to the office with the notice of the proposed action, and make available to the public upon request, a copy of the express terms of the proposed action as described in subdivision (b) of Section 11346.5, a list of the small business enterprises or their representatives to whom the notice of adoption, amendment, or repeal of a regulation will be mailed and an initial statement of reasons for proposing the adoption, amendment, or repeal of a regulation. The statement shall include, but not be limited to, all of the following:
(1) A description of the public problem, administrative requirement, or other condition or circumstance that each adoption, amendment, or repeal is intended to address.
(2) A statement of the specific purpose of each adoption, amendment, or repeal and the rationale for the determination by the agency that each adoption, amendment, or repeal is reasonably necessary to carry out the purpose for which it is proposed.
(3) An identification of each technical, theoretical, and empirical study, report, or similar document, if any, on which the agency is relying in proposing the adoption, amendment, or repeal of a regulation.
(4) A description of any alternatives the agency has identified that would lessen any adverse impact on small businesses. It is not the intent of this subdivision to require the agency to artificially construct alternatives or to justify why it has not identified alternatives.
General comment - I am very disappointed to see that the substantial and significant information provided to the DFG by California miners as well as the body of scientific record was totally ignored. I believe this has resulted in very flawed regulations that severely impact the ability of local businesses to operate and property owners to make use of their property. I believe the regulations to be oppressive and question the integrity of the process.
CF&GC Section 5653.1 requires that on suction dredge mining “fully mitigate all identified significant environmental impacts.” First, this selectively holds suction dredge mining to a standard contrary to CF&GC 2052.1, which states: “The Legislature further finds and declares that if any provision of this chapter requires a person to provide mitigation measures or alternatives to address a particular impact on a candidate species, threatened species, or endangered species, the measures or alternatives required shall be roughly proportional in extent to any impact on those species that is caused by that person.”The requirement that impacts be “fully mitigated” selectively holds S.D. mining to a standard not required of any other industry under CEQA (Pub. Res. Code 21000, et seq.,) which has no “fully mitigate” requirement or standard. In fact, CEQA allows for findings that “ specific overriding economic, legal, social, technological, or other benefits of the project outweigh the significant effects on the environment.” CF&GC 2081 also includes the “fully mitigate” verbiage it applies to “measures required” not “regulations” and holds such measures to a standard of “roughly proportional in extent to the impact of the authorized taking on the species.”
I strongly oppose these regulations as proposed.
Marcia H. Armstrong
Siskiyou County Supervisor
P.O. Box 750
Yreka, CA 96097