The Honorable Governor Arnold Schwarzenegger
State Capitol Building
Sacramento, CA 95814
Fax: 916-558-3160

Dear Governor Schwarzenegger

PLEASE VOTE NO ON BILL 670 (anti-suction dredging legislation)

I am a research biologist. I live in Philomath, Oregon. I worked for about 32 years as a research biologist for the United States Environmental Protection Agency, starting when that agency was known as the Federal Water Quality Agency, and I retired from the E.P.A. in 2002. Among other assignments, I measured and evaluated water soluble toxicants from Superfund sites. I spent about four years during my career with the E.P.A. serving as a faculty member at Oregon State University in Corvallis, Oregon on an intergovernmental exchange program and developed a program and a laboratory for the practice of ecotoxicology, the science of determining the toxicity of samples of effluents and other environmental contaminants by measuring the reaction of living organism assemblages to such samples. I have served as a chairman of testing committees for the American Society for Testing and Materials. I have chaired a number of international symposia, workshops, and congresses in my field as well as been an invited speaker to numerous national and international professional scientific meetings in my field.

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Given that SB 670 focus on determining “possible” environmental impacts beyond de minimis or negligible impacts of small scale suction dredging in California waterways.

Because the state of California licenses sports & commercial fishing state wide, as well as through various agencies licenses water diversion, impoundment, use for hydroelectric power production, agricultural irrigation, industrial use, & municipal use (including sewage treatment), etc.

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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.

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The price of gold is down a bit as the year ends but still near $1,100 an ounce. With those stakes, the suction-dredge operators who used to ply their potentially lucrative hobby on many California rivers would far prefer the right to mine over a $47.50 refund of their permit fees.

But the consolation prize, offered under a bill recently drafted by state Sen. Sam Aanestad, is probably the best deal they can get after the Legislature slapped a moratorium on the practice this summer.

That law stopped dredge mining while the Department of Fish and Game reviews whether its regulations do enough to protect declining salmon fisheries. In the process, it also left more than 3,000 miners holding permits that were suddenly worth less than a bucket of dry gravel.

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Let me say up front that I am absolutely appalled over the ban on dredging. I do not dredge, and have just started prospecting this year. However, I think the ban is completely unnecessary & the reasoning for it unfounded. I do see the budget-issues being the primer for the action (i.e. Hillman). And it seems that the Indian tribes & environmentalists have taken advantage of that action to further their own causes. I don't know what's motivating them. But it sure does sound like it is something other than saving the environment.

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SACRAMENTO: Senator Sam Aanestad (R-Grass Valley) has introduced new legislation that provides financial relief for the suction dredge mining industry in California. Senator Aanestad agreed to author SB 233 following the successful passage of legislation earlier this year that placed a permanent ban on the practice of Suction Dredge Mining in California.

Specifically, the Aanestad legislation will allow miners to request a refund of all suction dredge mining permits that were purchased from the California Department of Fish and Game (DFG) in 2009. Senator Aanestad says his legislation is a matter of fairness.

“Thousands of miners in California followed the letter of the law by purchasing permits in 2009 that would allow them to practice suction dredge mining,” said Senator Aanestad. “They are not to blame for legislative action earlier this year that essentially pulled the rug out from underneath their industry. They paid for a full year of mining activities. They didn’t get it. They deserve a full refund.”

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SB 670 DFG SEIR
P.22
6.2 Baseline Conditions Under CEQA, the environmental setting or “baseline” serves as a gauge to assess changes to existing physical conditions that will occur as a result of a proposed project. CEQA Guidelines section 15125 provides that, for purposes of an EIR, the environmental setting is normally the existing physical conditions in and around the vicinity of the proposed project as those conditions exist at the time the Notice of Preparation is published. As underscored by appellate case law, however, the appropriate environmental baseline for a given project may be different in certain circumstances in order to provide meaningful review and disclosure of the environmental impacts that will actually occur with the proposed project. In the present case, the Department has determined that a conservative approach to identifying the environmental baseline is appropriate. As described above, instream suction dredge mining is currently prohibited in California pursuant to a recently enacted state law. (Fish & G. Code, 5653.1, added by Stats. 2009, ch. 62, § 1 (SB 670 (Wiggins).) The same law and a related court order also prohibit the Department from issuing new suction dredge permits. The Department has determined, as a result, that the appropriate environmental baseline for purposes of CEQA and the analysis set forth below is one that assumes no suction dredging in California. This Initial Study and the SEIR will, as a result, provide a “fresh look” at the impacts of suction dredge mining on the environment generally.

DFG SHOULD TAKE A “FRESH LOOK” AT THIS.
THEIR OWN WORDS

http://www.goldgold....Gdenial_ltr.pdf

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Reality here is federal law is crystal clear. We should win this hands down.

For that matter, other than SB 670, California constitutional, and property law is also clear.
And, again makes our position a winner hands down.

The inherent difficulty in all this is.

Foremost, the coalition against us painted a picture to the public that is UTTERLY FALSE
And, did a very good job of broadcasting propaganda against us.

The coalition against us outright lied to the public & CA legislature time & time again.

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The SB 670 CEQA process is governed by APA. Which mandates public notice, and comment periods before any new regulations are implemented. In effect DGF has to tell the public the why, what & where they are going to impose new suction dredge regulations. Assuming DFG will impose some new stream, river, or whole drainage closures. In that any new year around closure would “take” all beneficial use of any valid placer mining claim that was only amenable to being mined by suction dredging. Ultimately, those mining claim owners effected by such a complete “taking” of all economically viable use of their private property rights. They would be due “compensation” for the value taken from them. Certainly, to collect compensation, various administrative, and judicial hurdles must be jumped. But, it’s there for those who have the ability to do just that.

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SUMMARY OF ARGUMENT:

This action must be dismissed in whole or in part for a variety of reasons, including:

1). The Eleventh Amendment bars all of PLP’s claims against the State and DFG, bars all of PLP’s state law claims against all defendants, and bars all of PLP’s claims for damages (including those for taking of private property).

2). This Court lacks jurisdiction over all of PLP’s claims: PLP lacks standing to bring them because its claimed injuries are not redressable by this Court because, regardless of SB 670, the state court injunction in Hillman prohibits DFG from issuing any new suction dredge permits under its existing regulations.

3). Even without the Eleventh Amendment and jurisdictional bars, the Court must abstain pursuant to Younger v. Harris, 401 U.S. 37 (1971), due to the interference this action will cause to pending state proceedings in Hillman.

REPLY TO 1).

With regard to SB 670 statewide indefinite mining prohibitions, the state of California claims sovereign immunity under the 11th Amendment of the U.S. Constitution. The rule of state sovereign immunity is subject to an exception: where a suit seeks relief against a state agency for action contrary "to the supreme authority of the United States", it is not deemed a suit against the sovereign. Ex parte Young, 209 U.S. 123, 28 S.Ct. 441, 52 L.Ed. 714 (1908).

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