Ignorance of the Law excuses no one PDF Print E-mail
Thursday, 31 December 2009

Especially, California lawmakers

The California Legislature in passing SB 670. A law which illegally prohibits all gold mining by small scale suction dredging state wide for an indefinite period of time. Displays a perfect example of disregard for the Rule of Law by the California state legislature.

It is at best sad, if not horrific private citizens have to remind elected officials the U.S. Constitution mandates that “no private property shall be taken for public use without just compensation. Likewise, the Constitution of California mandates the state is an inseparable part of the United States of America, and the United States Constitution is the supreme law of the land.

That a person may not be deprived of life, liberty, or property without due process of law, or denied equal protection of the laws; and Private property may only be taken or damaged for a public use when just compensation, has first been paid to the owner.

California was 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;

And that all the navigable waters within the said State shall be common highways, and forever free, as well to the inhabitants of said State as to the citizens of the United States, without any tax, impost, or duty therefore.

Indisputably, under both federal, and state law, a valid unpatented placer mining claim is in fact "private property", granting the owner the right to mine it, and profit from the flow of income derived from doing so.

No one disputes, the state has the right to reasonably regulate suction dredge mining to protect the environment. However, under federal law prospecting, locating and developing mineral resources on federal lands, which comprise 45% of California may not be prohibited nor so unreasonably circumscribed as to amount to a total prohibition.

Plainly, suction dredging is the only practical, economical and environmentally sound gold mining method available to citizens of ordinary means, who own placer mining claims. There is no other viable method to mine placer gold concentrated on or near bedrock in river, or stream gravels.

Clearly, taking an Oath of Office, that they will support the Constitution of the United States, and the Constitution of the state of California, to faithfully discharge those duties elected state officials are obligated to know the very foundation of the Rule of Law, and facts of any matter they are to govern.

The facts here are straight forward. The major impetus behind SB 670 is supposedly to protect water quality, and the spawning grounds of threatened or endangered Salmon & Steelhead runs in California.

Fact: The exterior boundaries of salmon / steelhead watersheds cover a total of only about 1/3 of the state of California. Precise maps of applicable waterways show them to be less than 8% of the state.

2/3rds of California contain no salmon / steelhead habitat. Obviously, no protection is necessary, where no salmon habitat exists. Yet illogically the SB 670 suction dredge ban is statewide.

Fact; There are 64,438 miles of rivers, and 124,615 miles of streams, totaling 211,513 miles of waterways in California.

If the 3,200 suction dredge permit holders were to operate simultaneously, there would only be one single suction dredge operating per 70 miles of existing California waterways. If half that number were operating simultaneously, there would only be one single suction dredge operating per 140 miles of waterways. Given that fact, suction dredging has so small an impact, it cannot be more than negligible.

Fact: Massive unrestricted hydraulic mining began in California circa 1853 and ended in 1884. Bucket line dredge mining began in California circa 1890, diminished during WW2 and ended about 1960.

The combined effects of those antiquated gold mining methods was to wash about two billion tons of silt, sediment, & tailings, as well as approximately 5 million lbs of mercury into California streams, and rivers that are salmon / steelhead habitat.

Certainly, those mammoth sized gold mining methods had a wide range of devastating effects on water quality & salmon habitat environment. Even so, California salmon, steelhead & trout populations remained relatively stable throughout that 80 year span of time.

Given that fact, plainly, the effects of modern day small scale suction dredging are so infinitesimally small, they are realistically of no practical consequence on water quality & fish habitat.

Fact: Proponents argue suction dredging stirs up & disperses mercury lost in California waterways from historic gold mining methods.

Reality: The argument is totally without merit, as modern day suction dredges catch, recover and remove 98% of mercury passing through them. Which is beneficial to the environment, rather that adverse to it.

Fact: SB 670 mandates a state wide study of suction dredging effects, costing tax payers $1.5 million dollars.

Reality: Dozens of peer reviewed authoritative scientific studies of small scale suction dredging performed by numerous federal, state agencies, and universities exist already. All those study reports clearly show suction dredging has only a fleeting negligible effect on water quality & fish habitat.

Given the massive amount of credible scientific information & reports that already exist on the subject. Any competent agency could simply compile those reports, then draw reasonable unbiased conclusions from them, rather that duplicate identical studies at great cost to the tax payer.

Fact: Pre SB 670 DF&G regulations prohibit suction dredging in rivers, or stream area's during times when critical life events of salmon occur.

Reality: Because suction dredging was already prohibited in areas & at times where critical salmon life events occur. Suction dredging cannot have any more than negligible impact on salmon spawning habitat, as no suction dredging takes place during those events.

Fact: Fiscal Effect: According to the Senate Appropriations Committee, SB 670 has negligible state costs.

The truth: According to a recent study the fiscal effects of SB 670 will cause economic loss between $60 to $100 million dollars annually. Primarily forced on individuals, mining claim owners, small business entities, and suction dredge manufactures.

Fact: SB 670 is said to impose a temporary 2 year ban on suction dredging.

Reality: DF&G was previously court ordered to complete a suction dredge study, and failed to do so. Given that history, DF&G may take years, a decade, or possibly never complete the SB 670 study. As such, for all practical purposes the SB 670 suction dredge ban is indefinite.

Fact: SB 670 was passed as an “urgency” measure, to take effect immediately, based on “findings” by the legislator that suction dredging results in various adverse environmental impacts on protected species of fish.

Reality: CF&G previous study shows only fleeting negligible adverse impact, and their own existing regulations minimize all potential impact by prohibiting suction dredging in places, and times where critical life events of salmon occur.

Moreover, the legislature continues to ignore dozens of credible studies that clearly show small scale suction dredging has only a fleeting, and negligible impact on water quality, and fisheries. No environmental emergency exists, but the California legislature arbitrarily declares one here, to imposed an illegal law immediatly.

Fact: Astute legislators always submit proposed laws to the state attorney generals office for a legal opinion whether the new law will cause, or create compensable takings of private property, create financial liabilities to the state, and/or could the proposed law be preempted by overriding federal law. Resulting in federal court challenges from affected damaged parties, that cannot be well defended, nor won.

Reality: The California legislature apparently did not ask the state attorney generals office for any legal opinion regarding the effects of SB 670. Thus, the legislature proceeded blindly, without full knowledge of the legal facts, consequences, ramifications or possible damages of their actions.

Fact: Unquestionably, massive water diversions to irrigate California's agricultural crops, hydroelectric dams to power all of California’s electrical needs, agricultural pollutants, industrial pollutants, logging effects, over fishing, aversive ocean conditions, are obviously the primary cause of salmon population declines.

Those California water, and fish habitat pollution issues are so huge, the truth is California legislature can do little to abate them, without shutting down the very infrastructure of the state.

Instead of tackling the real pollution issues affecting water quality, and fish habitat. California politicians chose to attack, and unjustly prohibit small scale suction dredging, who’s overall impact is so small, it is of no realistic consequence.

The reality here is that proponents of SB 670 used a progressive smear campaign disseminating volumes of misinformation, disinformation, distorted Nazi style propaganda, and outright lies in the hope of fostering the political view that suction dredge gold mining by a relatively tiny group of individuals in California is a major cause of water quality pollution, causing the decline of local salmon populations.

Ponder for a moment, near 3 million California fishermen, casually kill fish as leisure sport. California’s commercial fishermen kill fish for profit. Various California Indian tribes, some with, and some without federally protected rights to harvest fish with dip nets kill massive numbers of salmon every year. These are the very groups that supported SB 670. To anyone with common sense, the hypocrisy in that is astounding.

California fishermen themselves annually cast out, and lose more than 100 tons of lead, innumerable metal swivels, millions of steel hooks, and immeasurable lengths of monofilament plastic fishing line into waterways.

Then, have the gall to point fingers, loudly proclaiming suction dredging harms water quality, and is causing the decline of salmon populations. When, in fact there is no credible evidence, suction dredging has ever harmed, or killed a single salmon.

Ponder for another moment, the combined pollution caused by all motorized boating in California exceeds many million fold any possible adverse effect small scale suction dredging has on waterways with California. Yet, California politicians would never ban recreation boating within the same waterways suction dredgers dredge in.

Apparently the California politicians who voted for passage of SB 670 are so blind, so gullible, so easy to fool they did not even take the time, or make the effort to determine what the truth, and facts of this matter, they themselves then vote on.

Plainly, It is impossible to make a fair, honest, unbiased judgment, or decision in any matter, without full knowledge of the true facts of any matter before you. Making any uniformed judgment is against the very oath of office they swore to uphold, and is in complete distain of the fiduciary duty every legislator has to govern fairly. To do otherwise, is negligent malfeasance.

SB 670 has caused, and will continue to cause tens of millions of dollars in gross economic loss annually to depressed rural areas of California. SB 670 illegally deprives 3,200 suction dredge permit holders, about 21,000 placer mining claim owners the right to mine gold they own, in the most viable, efficient, profitable, and environmentally friendly manner possible.

Sadly, California politicians in passing an illegal statewide prohibition on suction dredge mining, have forced those damaged to file a federal court action, to protect their mining rights, and to recover damages this irreconcilable law caused.

Anyone cognizant of the law, as previously decided in cases like California Coastal Commission et al., v. Granite Rock Co., 480 U.S. 572, 592, 107 S.Ct.1419, 1425 (1987). Which determined….."State and local regulations which render a mine commercially impracticable cannot be enforced".

Or another similar case, where mining on federally protected unpatented claims was prohibited, the court found, (1) preemption claim was ripe, and (2) Federal Mining Act preempted ordinance. Affirmed; South Dakota Mining Association Inc v. Lawrence County, 155 F.3d 1005

Given the law, the irrefutable fact that federal law preempts conflicting state law, and clear legal precedents already established. There is no doubt, this suction dredge mining ban will be flatly rejected, as plainly preempted by overriding federal law. The only issue left, would be to decide who is entitled to damages, and the amount.

The truly sad thing here, is all the pain, suffering, harm, depravation, loss and damage forced on a small minority, intentionally caused by California politicians willfully passing a law that clearly will not withstand a federal court challenge. For shame, as they are obligated to know better.

Gold mining is as quintessential to California, as a fish is to water. To illegally ban the right of a prospector, to mine what he struggled so hard to find, claimed, developed, owns, pays property tax on, and invested all he could, that he might profit from any gold he works so hard to recover, is abhorrent to any free mans sense of justice.

Apparently, California politicians lack such understanding, even though a clear reminder is often worn on their own finger, in the form of a gold wedding ring. The gold in it, may well have been mined in California, by a prospector. That same small minority group they have now unfairly disenfranchised, with the passage of SB 670.

Last Updated ( Thursday, 31 December 2009 )
 
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