Constructive Notice and Comment to CDFG PDF Print E-mail
Sunday, 22 November 2009


Public lands for the People inc.
501c-3 non profit org
7194 CONEJO DR.
San Bernardino Ca. 92404
909-889-3039

Mark Stopher Nov. 17, 2009
California Department of Fish and Game
601 Locust
Redding Ca. 96001

Constructive Notice and Comment
(On California Department of Fish and Game (DFG) Notice of Preparation (NOP) for Suction Dredge Mining and Rule Making Process)

Public Lands for the People Inc. (PLP) and I appreciate the opportunity to participate in the rule making process for suction dredge mining in the state of California.

The purpose of our comments is to inform the DFG that in the process of doing their Environmental Impact Study (EIR) to promulgate Suction Dredge Regulations for the State of California, DFG should seriously consider retaining an expert on Mining laws.

In the 1994 the DFG did not consider the ramifications of running afoul to the mining laws, the Constitutional protections, other applicable federal laws or the case law decisions on the rights of miners and mining claimants. If the DFG continues to ignore these laws in this present rule making process there will be serious ramifications in a court of law.

We notice that the California Department of Fish and Game (DFG) in several places refer to the suction dredge community as recreational. Where ever the DFG gets such language from will most likely create a great problem down the line for them. There is no such creature, either in state law or federal law which creates a recreational suction dredger, prospector or miner and can only serve to take a miner out from under the protection of the rights granted under the mining law.

Recreation is a privilege in most cases and mining is a property right, a grant of land under the federal mining laws of 1866 and 1872. (30 USC 22 – 54). For the DFG to treat miners, prospectors or mining claim owners, (Mineral Estate Grantees) with the same disrespect as given to the recreational activities will certainly exceed DFG’s regulatory authority.

Also it would appear that DFG believes they have discretion to regulate suction dredge mining to the point of prohibition. Case Law says that they can not prohibit prospecting or mining either temporarily or permanently.

In the Department of Fish and Game Notice of Preparation Document (DFG NOP) on page 21, last paragraph and I quote, “In other words, the issuance of individual suction dredge mining permits consistent with regulations adopted by the Department under Fish and game Code section 5653.9 is an important aspect of the discretionary project being analyzed in the SEIR that the Department proposes to carry out and approve for the purposes of CEQA.”

In the Department of Fish and Game Notice of Preparation Document (DFG of NOP) on page 25, part 7.5, Final SEIR and Proposed Regulations, and I quote, “The final SEIR, in turn inform the Department’s exercise of discretion as a lead agency under CEQA in deciding whether to approve a the Proposed Program as prescribed by the Fish and Game Code.”

The DFG does not have discretion under CEQA or NEPA or any other state or federal law to prohibit suction dredge mining, temporarily or permanently, mining is not discretionary.

Definition of Discretionary Blacks Law Dictionary 9th Edition
(of an act or Duty) “involving an exercise of judgment and choice, not an implementation of hard-and-fast rule.”

This language does not entertain the rights under the mining law but does offer an opportunity for the DFG to fall in an act of abuse of discretion.

Suction Dredge Mining nor any other form of modern day mining is discretionary and in the case of California’s CEQA suction dredge mining is a ministerial action and can not be classified as discretionary. (CEQ Guidelines 15260 – 15285)

Definition of Ministerial Blacks Law Dictionary 9th Edition
“Of or relating to an act that involves obedience to instructions or laws instead of discretion, judgment, or skill…”

Discretionary is a Violation of Public Resources Code
Section 21080-21098
21080. “ (a) Except as otherwise provided in this division, this
division shall apply to discretionary projects proposed to be carried
out or approved by public agencies,

State law under CEQA also is defined as to only apply to discretionary projects as quoted from section 21080 of the Public Resource code:

Discretionary is a violation of CALIFORNIA CODES
PUBLIC RESOURCES CODE
SECTION 21080-21098
21080. (a) Except as otherwise provided in this division, this
division shall apply to discretionary projects proposed to be carried
out or approved by public agencies…”

The Federal code states at 50 CFR § 402.03 (Applicability)
“Section 7 and the requirements of this Part apply to all actions in which there is discretionary Federal involvement or control.”

The U.S. Supreme Court in 2007 clarified the meaning of “discretionary agency action” in Home Builders v. Defenders of Wildlife 127 S.Ct. 2518 at 2534 where they stated:
“ Agency discretion presumes that an agency can exercise “judgment” in connection with a particular action. See Citizens to Preserve Overton Park, Inc. v. Volpe, 401 U.S. 402, 415-416, 91 S.Ct. 814, 28 L.Ed.2d 136 (1971); see also Random House Dictionary of the English Language 411 (unabridged ed.1967) (“discretion” defined as “the power or right to decide or act according to one's own judgment; freedom of judgment or choice”). As the mandatory language of § 402(b) itself illustrates, not every action authorized, funded, or carried out by a federal agency is a product of that agency's exercise of discretion.

This history of the regulation also supports the reading to which we defer today. As the dissent itself points out, the proposed version of § 402.03 initially stated that “Section 7 and the requirements of this Part apply to all actions in which there is Federal involvement or control,”48 Fed.Reg. 29999 (1983) (emphasis added); the Secretary of the Interior modified this language to provide (as adopted in the Final Rule now at issue) that the statutory requirements apply to “all actions in which there is discretionary Federal involvement or control,”51 Fed.Reg. 19958 (1986) (emphasis added). The dissent's reading would rob the word “discretionary” of any effect, and substitute the earlier, proposed version of the regulation for the text that was actually adopted.

In short, we read § 402.03 to mean what it says: that § 7(a)(2)'s no-jeopardy duty covers only discretionary agency actions and does not attach to actions (like the NPDES permitting transfer authorization) that an agency is required by statute to undertake once certain specified triggering events have occurred. This reading not only is reasonable, inasmuch as it gives effect to the ESA's provision, but also comports with the canon against implied repeals because it stays § 7(a)(2)'s mandate where it would effectively override otherwise mandatory statutory duties.”

A miner operating under the Mining Law statute has a non-discretionary agency “advisory” relationship. A miner cannot be legally tortured into a CEQA, NEPA or ESA scenario. The law also, as the Supreme Court ruled, “stays” the application of the ESA “where it would effectively override otherwise mandatory statutory duties” like (for the purposes of this discussion) the Mining Law.

Violation of National Environmental Policy Act (NEPA)
Under "C Programmatic Analysis and Tiering", non-discretionary activities such as
locatable minerals exploration, as well as pick and shovel work and suction dredging
where T&E species exist, could be facilitated under programmatic analyses”
In 1994 the California Department of Fish and Game completed their EIR on suction
dredging and determined that it was not deleterious to fish, in accordance with following the regulations as adopted. This should be sufficient until a new EIR is completed.
To illustrate this concept the Supreme Court has said:"A contract is a compact between two or more parties, and is either executory or executed. An executory contract is one in which a party binds himself to do, or not to do, a particular thing;...." "A contract executed is one in which the object [10 U.S. 87, 137] of contract is performed; and this, says Blackstone, differs in nothing from a grant...." "A contract executed, as well as one which is executory, contains
obligations binding on the parties. A grant, in its own nature, amounts to an extinguishment of the right of the grantor, and implies a contract not to reassert that right. A party is, therefore, always estopped by his
own grant." Fletcher v. Peck, 10 U.S. 87 (1810)

The Public Lands cannot be “free and open” to exploration if the historical means of use by prospectors and miners can be prohibited by the State of California. The State of California may have the power to reasonably regulate activities not incident to mining
upon the public lands, but those same regulations fail when they operate to prohibit the customary usage by legitimate prospectors and miners on valid mining claims or in pursuit of such a claim. These proposed statutory or regulatory amendments are prohibitive and not merely regulatory in fundamental character and, therefore, are unlawful as proposed. We call your attention to:

The DFG can not prohibit through regulation or using their discretion
Ventura County v. Gulf Oil Corporation, 601 F.2d 1090 (1979)
(2) Despite this extensive federal scheme reflecting concern for the local environment as well as development of the nations resources, Ventura demands a right of final approval. Ventura seeks to prohibit further activity by gulf until it secures and Open Space Use Permit which may maybe issued on whatever conditions Ventura determines appropriate, or which may never be issued at all. The federal Government has authorized a specific use of federal lands, and Ventura cannot prohibit that use, either temporarily or permanently, in an attempt to substitute its judgment for that of Congress.

Recreation is a privilege in most cases and mining is a property right, a grant of land under the federal mining laws of 1866 and 1872. (30 USC 22 – 54). For the DFG to treat miners, prospectors or mining claim owners, (Mineral Estate Grantees) with the same disrespect as given to the recreational activities will certainly exceed DFG’s regulatory authority. It would appear that DFG believes they have discretion to regulate suction dredge mining to the point of prohibition. Case Law says that they can not prohibit prospecting or mining either temporarily or permantly.

Federal laws are always preeminent: once Congress passes laws that occupy an area, no government at a lower tier, i.e., at the state or local level, may pass laws that conflict with the federal laws.

As a miner operating under the U.S. Mining law (30 U.S.C. 22-54) has a non-discretionary agency “advisory” relationship. A miner cannot be legally tortured into a CEQA, NEPA, CWA, or ESA scenario. The law also, as the Supreme Court ruled, “stays” the application of the ESA “where it would effectively override otherwise mandatory statutory duties” like (for the purposes of this argument) the mining law. The mining law (Congressional grant) does not by its very nature admit to a permissive system (lease system), otherwise the mining law would be rendered meaningless. The California Department of Fish and Game (DFG) does not authorize mining (the mining law does), the DFG does not fund mining, and the DFG does not carry out the mining, therefore mining under the U.S. Mining law is not by definition a “federal action” subject to the CEQA, NEPA or CWA due to this fact that federal and state involvement or control is non-discretionary in fundamental character. (See also Karuk v. Forest Service, Supra.)

In U.S. v. Weiss 642 F.2d at 296:
“Although authority exists for the promulgation of regulations, those regulations may, nevertheless, be struck down when they do not operate to accomplish the statutory purpose or where they encroach upon other statutory rights.”

Granite Rock v. US
“…County ordinance is preempted because it conflicts with federal law. Specifically, we address whether the ordinance conflicts with the Federal Mining Act because it stands as an obstacle to the accomplishment of the full purposes and objectives of Congress embodied in the Act. Granite Rock, 480 U.S. at 581, 107 S.Ct.”

Dakota Mining Assoc. v. Lawrence County 155 F3d 1005 (8th Cir. 1998
Agency actions can often amount to prohibitions that impermissibly encroach upon the right to the use and enjoyment of placer claims for mining purposes (see 30 U.S.C 26). To reinforce this point, in South Dakota Mining Assoc. v. Lawrence County 155 F3d 1005 (8th Cir. 1998), at 1011 the court stated: “…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. The ordinance is prohibitory, not regulatory, in its fundamental character.” Emphasis added.

30 U.S.C. 612(b)
so long as the agency regulatory authority over the miner does not become prohibitive. If the miner can work out a reasonable agreement, i.e. contract generally through an “informational”, then all is well. If not, then the miner can complain to the surface management agency through written administrative complaint or the appeal process and assert that the agencies actions are unreasonable, material interfering, prohibitive, and why, pursuant to 30 U.S.C. 612(b) (see also U.S. v. Curtis-Nevada Mines 611 F.2d 1277 at 1285).

Because environmental laws only apply in this setting. Namely the National Environmental Policy Act (NEPA-federal), the Endangered Species
The Court stated in Karuk v. Forest Service 379 F.Supp.2d 1071 at 1094 (N.D. Cal. 2005):

“…mining operations take place pursuant to the General Mining Law and the Surface Resources Act, which confers a statutory right upon miners to enter certain public lands for the purpose of mining and prospecting. This distinction is significant, as it differentiates mining operations from "licenses, contracts, leases, easements, rights-of-way, permits, or grants-in-aid," which are permissive in nature.
In fact, although Plaintiff vigorously argues that any act requiring "discretion" invokes the ESA, it is well-established that not every agency action triggers the consultation requirement of Section 7(a)(2) of the ESA. As the Ninth Circuit has made clear:
Within the limits prescribed by the Constitution, Congress undoubtedly has the power to regulate all conduct capable of harming protected species. However, Congress chose to apply section 7(a)(2) to federal relationships with private entities only when the federal agency acts to authorize, fund, or carry out the relevant activity.
Sierra Club v. Babbitt, 65 F.3d 1502, 1508 (9th Cir.1995) (emphasis added).”

And at 1095 the court stated:
. Marbled Murrelet, 83 F.3d. at 1074. Indeed, as the Ninth Circuit stated in Marbled Murrelet: Protection of endangered species would not be enhanced by a rule which would require a federal agency to perform the burdensome procedural tasks mandated by section 7 [of the ESA] simply because it advised or consulted with a private party. Such a rule would be a disincentive for the agency to give such advice or consultation. Moreover, private parties who wanted advice on how to comply with the ESA would be loathe to contact the [agency] for fear *1103 of triggering burdensome bureaucratic procedures. As a result, desirable communication between private entities and federal agencies on how to comply with the ESA would be stifled, and protection of threatened and endangered species would suffer.
Id. at 1074-75.

State law under CEQA also is defined as to only apply to discretionary projects as quoted from section 21080 of the Public Resource code:

CALIFORNIA CODES
PUBLIC RESOURCES CODE
SECTION 21080-21098
21080. (a) Except as otherwise provided in this division, this division shall apply to discretionary projects proposed to be carried out or approved by public agencies…”

Conclusion and Property Rights

Conclusion: The suction dredge miners and prospectors are not to be regulated under the discretion of any agency but only the non-discretionary or ministerial regulatory process.
- Unpatented mining claims are "property" in the highest sense of such term, which may be bought, sold and conveyed and will pass by decent. (30 USC 26.94)

Notice is given
I hereby officially request DFG’s unlawful actions cease and desist immediately. Failure to do so could subject the Director to personal suit for damages and those individuals acting in concert. The Director may also be subject to prosecution by the Dept. of Justice for Violations of the Hobbs Act (18 U.S.C. 1951), which states in part:
“(a) Whoever in any way or degree obstructs, delays, or affects commerce or the movement of any article or commodity in commerce, by robbery or extortion or attempts or conspires so to do, or commits or threatens physical violence to any person or property in furtherance of a plan or purpose to do anything in violation of this section shall be fined under this title or imprisoned not more than twenty years, or both.

(b) As used in this section--
(1) The term “robbery” means the unlawful taking or obtaining of personal property from the person or in the presence of another, against his will, by means of actual or threatened force, or violence, or fear of injury, immediate or future, to his person or property, or property in his custody or possession, or the person or property of a relative or member of his family or of anyone in his company at the time of the taking or obtaining.
(2) The term “extortion” means the obtaining of property from another, with his consent, induced by wrongful use of actual or threatened force, violence, or fear, or under color of official right.” Emphasis added

Respectfully Submitted

Gerald Hobbs
President PLP-

- Link to Original Post on PLP Website

 

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