Sunday, 06 December 2009


Senator Mimi Walters (Chair)
Senator Alan Lowenthal (Vice-Chair)
Senate Ethics Committee
State Capitol, Room 3082
Sacramento, CA 95814


Assemblyman Bill Emmerson
Assemblyman Paul Krekorian
Co-Chairman, Assembly Legislative Ethics
State Capitol
Sacramento, CA 95814


December 7, 2009




Dear Ethics Committee members,


Please consider this a formal ethics complaint against Senators Wiggins, and Wolk, Assembly Members Huffman, Evans and Jones. Mac Taylor, Legislative Analyst. As well as all members of those committees that effectuated SB 670.


The aforesaid persons are the primary authors, and proponents of SB 670. A recent law now in effect that prohibits the possession and use of any small scale gold mining suction dredge within one hundred (100) yards of any California waterway until various contingencies of SB 670 are completed.


The aforesaid persons knowingly conspired together to perorate a gross fraud upon the Governor, the complete legislative body, and the people of California. Resulting in irreconcilable annual economic damage in the area of one hundred million dollars ($100,000,000). As well as a potential financial liability to state coffers that may amount to one billion dollars ($1,000,000,000) as compensation for unconstitutional private property, and vested rights “takings“ SB 670 immediately effectuated.


While I applaud any law that would legitimately safeguard the natural environment of California. The aforesaid proponents of SB 670 willfully conspired together to quickly usher it through the legislative process, unlawfully omitting material facts, and intentionally misrepresenting others. The result being, an effective perpetration of fraud upon the whole legislature. Who, having the true facts hidden from them, unwittingly passed SB 670 into law.


The material facts that were unlawfully hidden from the legislature are as follows;


1. Small scale suction dredge gold mining primarily takes place on about fifty thousand (50,000) unpatented, and patented fee simple “mining claims” throughout California. Both of which by California statutory law are “real” and “taxable” private property.


SB 670 prohibits all beneficial use of those mining claims, effecting an unconstitutional compensable regulatory “taking”. For which the state will be held liable.


2. Small scale suction dredge gold mining is the only environmentally friendly practical means by which most placer mining claims in California can be profitably mined.


3. One of the SB 670 contingencies is that a court ordered environmental impact report be completed covering the Klamath, Salmon, and Scott rivers, not statewide.
Yet, SB 670 profit’s the use of small scale suction dredges statewide.


4. Pre-SB 670 suction dredge regulations were derived from a California Environmental Quality Act (CEQA) environmental impact report (EIR). No new significant peer reviewed scientific environmental impact studies covering small scale suction dredge gold mining exist since the 1994 CEQA EIR. That provide any new substantial scientific evidence that small scale suction dredge gold mining impacts has more the a negligible, or de minimus effect on fish or water quality.


5. One million five hundred thousand dollars ($1,500,000) of state funds were allocated for a new CEQA EIR. Yet, according to the California Department of Fish & Game, no new scientific small scale suction dredge testing will be performed under the new CEQA study. Which makes it nothing more that a $1.5 million dollar boondoggle.


6. JOINT RULES: Citizen Cost Impact Report 37.1. The citizen cost impact analyses shall include those economic effects that the Legislative Analyst deems significant and that he or she believes will result directly from the proposed legislation. Insofar as feasible, the economic effects considered by the Legislative Analyst shall include, but not be limited to, the following: (a) The economic effect on the public generally. (b) Any specific economic effect on persons or businesses in the case of legislation that is regulatory.


SB 670 is certainly regulatory, has an annual economic effect near 100 million dollars, and may result in a one billion dollar liability to the state. Yet, no such economic legislative report exists. Caused by SB 670 proponents fraudulently omitting material facts, to intentionally subvert the legislature into believing SB 670 economic effects were insignificant.


7. Mining prohibitions effected by SB 670 are clearly preempted by federal law governing small scale suction dredge mining on federal public domain lands. Which comprise forty five percent (45%) of California.


8. SB 670 prohibits small scale suction dredging statewide, until various contingencies of it are met. However, The Surface Mining and Reclamation Act (SMARA) Public Resources Code (PRC) Section 2710 et seq., at Section 2714(d) expressly EXEMPTS “Prospecting for, or the extraction of, minerals for commercial purposes and the removal of overburden in total amounts of less than 1,000 cubic yards in any one acre or less.”


9. Small scale suction dredge gold mining is also categorically exempt from permitting under section Public Resource Code Section 15304. Minor Alterations to Land. Class 4 exemptions consists of minor public or private alterations in the condition of land, water, and/or vegetation which do not involve removal of healthy, mature, scenic trees except for forestry or agricultural purposes.


Given that two distinct senior California statutes clearly exempt small scale suction dredge gold mining from CEQA permitting, while SB 670 provisions prohibit it. A clear incompatible statutory conflict in law exists. Which, until clarified, subjects small scale suction dredge miners to criminal citation, fine, and/or arrest on one hand, and not, on the other.


10. SB 670 prohibits possession of a suction dredge within one hundred yards of any California waterway. Thereby making it impossible, for all practical purposes to transport a suction dredge statewide, without the owner becoming subject to citation, fine and/or arrest. This statute unlawfully abrogates both suction dredge owners, and suction dredge manufactures constitutionally guaranteed right of free movement within California, and for purposes of interstate commerce.


11. SB 670 unlawfully cancelled all suction dredge permits statewide, without provision for refund. The term “vested mining right” includes both a right established by use, as well as a right established by permit. (See; TransOceanic Oil Corporation v. Santa Barbara (1948) 85 Cal.App.2d 776; Avco Community Developers, Inc. v. South Coast Regional Comm’n. (1976) 17 Cal.3d 785, 790 ; Goat Hill Tavern v. City of Costa Mesa (1992) 6 Cal.App.4th 1519; Hansen Bros. Enterprises v. Board of Supervisors of Nevada County (1996) 12 Cal.4th 533 (“Hansen”).)


12. SB 670 proponents knew full well beforehand, if passed into law. SB 670 provisions unlawfully prohibited all owners of mining claims situated over California waterways beneficial use of “riparian” water rights they own.


13. SB 670 proponents materially misrepresented facts that small scale suction dredge gold mining is primarily “recreational”. When in fact, it is a completely legal small business occupation. Which requires considerable investment, and is profitable. Which thousands derived either their full, or supplemental income from. SB 670 unlawfully immediately deprived all those it effected of that income. When, in these trying times, it is sorely needed.


14. SB 670 proponents materially misrepresented facts its prohibitions, would not cause unconstitutional compensable regulatory “taking” of private property rights of thousands it effected.


15. SB 670 proponents assert its prohibitions are “temporary”. But in fact, the CEQA study it imposes is so fraught with regulatory hurdles, conflicts of interest, incompatible conflicting statutory law, and other legal hurdles (federal preemption). That it may never be completed.


16. SB 670 proponents intentionally omitted this paramount fact. The California Statehood Admission Act (Sec. 3) expressly provides; “…said State of California is admitted into the Union upon the express condition that the people of said State, through their legislature or otherwise, shall never interfere with the primary disposal of the public lands within its limits, and shall pass no law and do no act whereby the title of the United States to, and right to dispose of, the same shall be impaired or questioned…”.


Indisputably, the state of California, it’s legislature, and all state regulatory agencies are expressly barred from impairing, or even questioning federal mining claim owners vested right to mine, and their private property rights held under federal law. Certainly, the state can “reasonably” “regulate” small scale suction dredge gold mining. But cannot make that regulation so onerous as to arbitrarily prohibit mining, even temporarily, without incurring monumental financial liability.


17. SB 670 was passed as an “urgency” measure, by legislative finding, unlawfully perpetrated by SB 670 proponents. Where neither significant, nor substantial evidence exists to support that “finding”.


Every fact here is fully supported by substantial unequivocally clear evidence, statutory, and complete case law. I did not include it, because my intend was to keep this short, succinct, and in plain language, that is easy to assimilate, comprehend and understand. But, if necessary, would gladly provide you any evidence, law or whatever else you might want, to verify these facts.


In effect, what occurred here is that, the aforesaid proponents of SB 670 knowingly, willfully, with absolute malice of forethought skillfully perpetrated an unlawful scheme in order to gain passage of SB 670 into law. Which, now unlawfully horribly victimizes all those it effects. As well as creates monumental future financial liability to the state of California.


I would think, as a legislative member yourself, once aware of the true facts, as revealed to you here. I would be outraged, some amongst you would think you were so blind, ignorant, or unintelligent, you would not become aware of their scheme.


You now have constructive, and actual notice of the true facts, SB 670 proponents materially misrepresented to you. Please, proceed as expeditiously as possible to rectify this wrong, as well as sanction those who unlawfully perpetrated it.






CC: Governor Arnold Schwarzenegger
President pro Tempore, California State Senate, Darrell Steinberg
Speaker of the Assembly, Karen Bass

Last Updated ( Sunday, 06 December 2009 )
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