Action Required
This is from Don Robinson of the Goldhounds in
Auburn.
Hello Goldhounds,
The following is a letter from Jerry Hobbs, PLP, to the Governor about
stopping the trailer bill to the budget that is attempting to stop all
dredging in California. It's important that each of us address this
issue and take the time to send Governor Arnold Schwarzenegger a letter
to veto this trailer bill. If this is approved, dredging stops in
California. Feel free to use some of Jerry's ideas and thoughts on this.
Each of us need to address this issue right now and send the Governor a
letter before it's too late. Thanks. Don
PLP letter to Ca. Gov.
Feel free to us any part of this letter with your comments on the
moratorium on suction dredging in the state of California. It is
important to get these letters in to keep dredging in this state alive.
Public lands for the People inc.
501c-3 non profit org
7194 CONEJO DR.
San Bernardino Ca. 92404
Honorable Governor Arnold Schwarzenegger
Governor of the State of California 7/8/2008
California State Capital Bldg. Cert.
Sacramento, Ca. 95814
RE: Budget Bill with attached Trailer Bill , 2008, Funding for CA.
State Fish and Game Environmental Impact Report Study on Suction
Dredging.
Dear Governor Schwarzenegger
Public Lands for the People inc. (PLP) is a 501 c-3 non profit
organization with approximately 40,000, constituent members, most of
whom are small and medium scale suction dredge miners and prospectors
who would be affected by any moratorium on suction dredge mining.
It is our understanding that there is an attempt by the CA. State
Legislature to add a Trailer Bill (rider) to funding recommended for CA.
State Budget, Sec. 3600, resources, California Department of Fish and
Game (DFG). That Trailer Bill would read something to the effect that if
the monies for the Environmental Impact Report (EIR) on suction dredging
mining are awarded to the California State Fish and Game, that there
will be a moratorium on suction dredge mining in the state of California
until the DFG’s completion of the EIR (which could be from 2 to 10
years) and a raise in permit fees from approximately $45.00 to $100.00
for each permit.
We would like to point out PLP’s opposition and legal position on this
Trailer Bill (rider) to Governor Schwarzenegger, so that he will be able
to understand the problems that may occur down the line between the
miners and the State of California if such a moratorium is put into
place and enforced.
First of all the Governor has already vetoed a Bill (AB 1032) which
attempted raise fees for suction dredge permits and to close some 68
rivers in the State of California just last year, 2007. The following
quoted material is what Governor Schwarzenegger had to say about
closures on suction dredge mining. In essence a moratorium is a closure
and prohibition for what ever length of time.
“To the Members of the California State Assembly:”
”I am returning Assembly Bill 1032 without my signature.”
”The purpose of this bill is to protect fish and wildlife from the
potential deleterious effects of suction dredge mining. Although I
appreciate the author’s intent and the need to protect our fish,
wildlife, and water resources, this bill is unnecessary.”
”Current law gives the Department of Fish and Game (Department) the
necessary authority to protect fish and wildlife resources from suction
dredge mining. It has promulgated regulations and issues permits for
this activity. Permits for suction dredge mining must ensure that these
operations are not deleterious to fish and allow the Department to
specify the type and size of equipment to be used. In its regulations,
the Department may also designate specific waters or areas that are
closed to dredging.”
”It is unclear why this bill specifically targets a number of specific
waterways for closure or further restrictions. The listed waterways
represent only a small fraction of the waters in our State where suction
dredging is occurring. The benefit or protection from such a minor
closure is negligible and supports the notion that scientific
environmental review should precede such decisions.”
”Sincerely,
Arnold Schwarzenegger”
The Governor is not the only party to state that, “The benefit or
protection from such a minor closure is negligible and supports the
notion that scientific environmental review should precede such
decisions.” In a 2007 Court decision, (Karuk Tribe v CA. Department of
Fish and Game) Judge Bonnie Sabraw stated that, and I quote:
“Here, the initial PSJ would enjoin suction dredge mining all together
in certain areas and during certain periods in others. The closures of
the rivers would be generally applicable to all suction dredging while
in effect. The injunction would essentially operate as a promulgation of
regulations on suction dredging, without such regulations having been
subject, as required by law, to the public notice and hearing
requirements of the California Environmental Quality Act and the
California Administrative Procedures Act. See Cal. Fish and Game Code
section 5653.9.”
The following Federal case also finds violation of federal law by the
state of CA., if this proposed Trailer Bill were to implement a
moratorium on suction dredge mining for the duration of said EIR, it
would be a prohibition and in conflict with federal law.
South Dakota Mining Association v. Lawrence County (Cite as: 155 F.3d
1005)
“If Congress evidences intent to occupy given field, any state law or
local ordinance falling within that field is preempted. U.S.C.A. Const.
Art. 6, cl. 2.”
“If Congress has not entirely displaced state regulation over matter in
question, state law is still preempted to extent it actually conflicts
with federal law, that is, when it is impossible to comply with both
state and federal law, or where state law stands as obstacle to
accomplishment of full purposes and objectives of Congress. U.S.C.A.
Const. Art. 6, cl. 2.”
“Federal Mining Act preempted ordinance prohibiting issuance of any new
or amended permits for surface metal mining within area which included
federal lands; ordinance stood as obstacle to accomplishment of full
purposes and objectives of Congress of encouraging exploration and
mining of valuable mineral deposits located on federal land. U.S.C.A.
Const. Art. 6, cl. 2; 30 U.S.C.A. §§ 21 26.”
“The Supreme Court has set forth the analysis we must apply to determine
if a state law is preempted by federal law:”
“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.”
Peters v. Union Pac. R..R. Co., 80 F.3d 257, 261 (8th Cir.1996).
“Congress has codified its declaration of the federal government's
policy towards mining:”
“The Congress declares that it is the continuing policy of the Federal
Government in the national interest to foster and encourage private
enterprise in (1) the development of economically sound and stable
domestic mining, minerals, metal and mineral reclamation industries, (2)
the orderly and economic development of domestic mineral resources,
reserves, and reclamation of metals and minerals to help assure
satisfaction of industrial, security and environmental needs,”
Passage of the CA. Budget bill with a moritorium rider attached,
prohibiting suction dredge mining, completely frustrates the
accomplishment of these federally encouraged activities. A local
government cannot prohibit a lawful use of the sovereign's land that the
superior sovereign itself permits and encourages. To do so offends both
the Property Clause and the Supremacy Clause of the federal
Constitution. Passage of this portion of the CA. Budget is prohibitory,
not regulatory, in its fundamental character.
For the above reasons PLP asks that Governor Schwarzenegger veto any
rider or Trailer Bill attached to budget funding for the CA. Deptarment
of Fish and game to do the EIR on suction dredge mining.
Respectfully Submitted
Gerald Hobbs
President
Public Lands for the People
909-889-3039
Jerhobbs2@verizon.net
Issue 1: Court Ordered Suction Dredge Program Review
Governor’s Budget. The Governor’s budget proposes $1 million General
Fund for 2008-09 and $500,000 for 2009-10 to complete a court ordered
environmental review of the Department's Suction Dredging Program
pursuant to the California Environmental Quality Act.
Background. Suction Dredging is the practice of vacuuming river or lake
bottoms for gold. In 1994 the Department of Fish and Game (DFG) adopted
regulations to implement the suction dredge program, as required by
statute. Since that time, the DFG and the National Marine Fisheries
Service have listed ten fish species as threatened or endangered.
In 2005, the Karuk Tribe of California filed a complaint for declaratory
relief against DFG in Alameda County Superior Court alleging DFG’s
issuance of suction dredge permits in the Klamath, Scott, and Salmon
River watersheds violated the California Environmental Quality Act
(CEQA) because of the potential for suction dredge mining in these
watersheds to result in significant impacts to the newly listed Coho
salmon.
On December 20, 2006, the Alameda County Superior Court ordered DFG by
June 2008 to “…conduct a further environmental review pursuant to CEQA
of its suction dredge mining regulation and to implement, if necessary,
via rulemaking, mitigation measures to protect the Coho salmon and/or
other special status fish species…” The Court found that DFG has a legal
obligation to review the environmental effects of suction dredge mining
on Coho salmon and other fish species of special concern.
Current Fee Structure. Annually, DFG processes about 300 permits per
year for Suction Dredge Gold Mining. Currently, the Department charges a
fee of $50 for permit, generating total revenues of about $150,000.
Staff understands that it will cost the Department about $1.26 million
to conduct the EIR, administer and enforce this program in 2008-09.
Staff Comments. The Subcommittee may wish to consider raising the
Suction Dredge Gold Mining permit fee bay an amount that would generate
adequate revenue to support more or all of the costs to administer and
operate this program. Suction dredge mining poses significant risks to
sensitive aquatic and riparian that provide habitat for many State and
Federal listed endangered species. Increased revenues to the program
would help improve ongoing enforcement of permitted, and non-permitted,
mining activities – without which, the State has little control over how
this practice is impacting the public trust.
Additionally, staff has concerns that while DFG is completing the EIR of
the program, the Department's deficiencies in program enforcement will
allow further potential degradation of statewide anadramous fish
habitat. Considering the crisis the state is facing with salmon
populations, the Subcommittee should discuss potential interim measures
such as moratoriums on mining that might be taken to protect habitat
from dredge mining.
Action: Approve as budgeted with trailer
bill language to increase suction dredging fees and place partial
moratorium on mining while EIR is being completed.
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8-17-08
Message FMDAC's South Western Chapter
