How Government and Environmentalists Collude to Achieve Socialist Objectives
"First get your facts straight, then you can distort them as you please." Mark Twain
Environmentalists know if you push a lie long enough, and hard enough, people will believe it's the truth. We expect this from them. When the government assists them in this lie, at the expense of decent, hardworking people, it's unconscionable.
Suction dredging is controversial but does it harm fish or the environment in any appreciable way? In 1960 the California legislature passed the first law which required regulation and permitting of the use of suction dredges, for the protection of salmon spawning areas.
Above. Little dredge, big canyon, big lies to ban it.
From 1961 to 1994 suction dredging went on largely unnoticed. In 1994 the first full Environmental Impact Report (EIR) was conducted by the California Department of Fish and Wildlife (CDFW) and concluded suction dredging, under reasonable regulation, would cause no significant harm to the environment.
This should have been the last word, right?
The California Environmental Quality Act, passed in 1970, allows only 30 days for opponents of a project to challenge a completed EIR. In 1994 no one challenged the EIR meaning it was final. The Act also exempts any activity which was ongoing, and required a permit, prior to the passage of the law which meant suction dredging was exempt.
Kind of. CEQA also allows an EIR to be re-opened under a very limited set of circumstances which includes new information is presented which was unknown, and could not have been known at the time of the EIR. Those conditions are very well defined, and also very restrictive. They are meant to keep the government from conducting repeated EIRs each time someone finds some other minor issue with the project, which environmentalists always do.
Almost immediately the environmental groups realized they had missed their opportunity to challenge the EIR and kill suction dredging, but there was no legal way for them to stop it.
The environmental groups began putting pressure on CDFW to conduct a new EIR, one which would find significant effects were in fact occurring and to shut down suction dredging throughout the State.
In 1995 CDFW began the preliminary work to prepare a new EIR, one which they believed would pacify the environmentalists, at the expense of legal mining claim holders. This 1995 effort was killed when miner John Oates obtained a letter from the US Forest Service Oates had asked the US Forest Service minerals examiner why California was immediately conducting another EIR when one had been completed less than a year before.
The USFS minerals officer, Richard Zambiac, called CDFW and spoke to their senior fisheries biologist, Mr. Steven Taylor. The response received isn't surprising, but it is instructive, Mr. Zambiac replied to Oates with the following:
"...he stated he did not know very much about mining, but he knew a lot about writing regulations...Mr. Taylor stated that the reason for the proposed Regulations was because the Department of Fish and Game is getting a lot of pressure from influential special interest groups that don't believe miners should be working in the rivers.' He then went on to say the proposed regulations would be a good starting point to get this situation under control even though the Department had little scientific evidence that dredging in the rivers really has a long term negative impact on fish and other aquatic life."
Save The Salmon
In 2003, responding to complaints from the Karuks the Department sent two fisheries biologists, Mr. Dennis Maria, and Mr. Bob McCallister to the Salmon River to investigate the effects of suction dredging. They went to the river on the last day of dredging season, which meant all effects from a season of dredging were observed. Their report concluded:
"The dredge holes created the only discernable juvenile rearing habitat (rearing & escape cover) that I could see...This rearing habitat consisted of "clean" unimbedded cobbles that covered the dredger pool substrate."
"...the relatively light accumulation of fines observed at this location, the general lack of rearing habitat (cover) in this reach and the relatively high temperatures found here...makes it unlikely that the current dredging impacts will significantly or substantially harm anadromous salmonid spawning..."
"In fact, for an area which had been dredged all summer long, I saw relatively innocuous disturbance to the existing habitat."
"In summary...I saw nothing that would be considered a violation or that would have a significant impact to the fishery or significantly negatively impact the overall biotic community of the Salmon River."
In 2005 the Karuk tribe filed a lawsuit in Alameda County claiming because the coho salmon were now classified as a threatened species and demanded the Department close the Scott, Salmon and Klamath Rivers to suction dredging. This lawsuit, while claiming dredging "may" harm salmon, with no proof, didn't mention the killing of over 75,000 salmon per year by the Indian Tribes on the Klamath River.
Dredging Doesn't Harm Salmon...Oops I Didn't Mean That
In response to the lawsuit CDFW denied suction dredging was having any harful effects on salmon and provided sworn testimony stating dredging was not delterious to salmon and both dredging and the salmon could survive.
CDFW denied suction dredging was having any harmful effects on salmon and provided sworn testimony from their senior fisheries biologist, Mr. Neil Manji, which said:
"...in my professional opinion as a fishery biologist, the existing regulations governing suction dredging, which are found in sections 228 and 228.5 of Title 14 of the California Code of Regulations serve to permit suction dredging activities while, at the same time, providing protection for spawning adult salmonids, including chinook salmon, and the developing eggs and larvae of such species, which remain in the gravel following spawning."
In February 2006, one month after the Department's fisheries biologist had denied suction dredging was causing any negative effects the miners learned the Department had reached a secret settlement agreement with the Karuks whereby the Klamath, Scott and Salmon Rivers would be closed permanently to dredging. The New 49ers and Jerry Hobbs intervened to block the settlement agreement on behalf of all mining claim holders on these rivers. The miners requested the new information, the Department claimed it had, which supported a settlement agreement. The State responded by requesting a Protective Order against release of the information which the Court granted.
The Court denied the miners, and the public from even seeing this supposed new information.
The Alameda Court then ruled the secret agreement violated the law and blocked the settlement agreement.
The Supposed New Information
In September 2006 the Department reverses course and in a classic sue and settlement tactic admits to the Court they now believe suction dredging is harming salmon and requests the Court to order a new environmental study be prepared. They further inform the Court it must defer to their judgment on this because they are the trustee agency for fish and therefore their opinion is the "expert" opinion. The courts are required to provide great deferrence to the statements of agencies always assuming they are the truth. In this case this deferrence was misplaced based on Mr. Manji's January 2006 declaration.
The Department's fishery biologist opinion from January doesn't support their statement. Mr. Manji then submits an updated sworn declaration "clarifying" his January declaration. In October 2006 the new declaration says in fact suction dredging is harming salmon and he states he bases this new statement on the review of 25 new studies and "substantially" more information on salmon than the Department had in January.
The Court then orders a new environmental review through a Consent Decree which the miners signed, but only agreeing to a limited review of the supposed new effects on the Klamath, Scott and Salmon Rivers. The miners continued to emphatically deny suction dredging was causing any harm or there was new information which indicated this.
The Department, in what appears to be a violation of law, then used the order for a limited review to meet the demands of the environmentalists, that a full blown, statewide, EIR be prepared, and this time the EIR would show just how severe the effects were.
Except there was no evidence of any new effects not previously studied in 1994. In fact the 25 new reports the Department used showed no new information. A review of the reports the Department used to justify the new EIR shows not a single report added to the knowledge they already had. The reports were simply used as a smoke screen for conducting the new EIR the environmentalists had so long sought. There was, however, one report which the State was funding, and directing, which was slated to evaluate the effects of suction dredging and mercury.
The King of Mercury Studies
The State selected Dr. Charles Alpers, of the US Geological Survey, as the lead scientist for this study. Dr. Alpers was an advisor to the Sierra Fund, a supposed environmental group with an extreme anti-mining agenda. Dr. Alpers was on the Board of Advisors of the Sierra Fund and was also a donor to the group. The Alpers experiment was supposed to evaluate the effects of an actual suction dredge and its ability to remove mercury from polluted waterways. A California Water Board Study in 2003 had found an unmodified suction dredge had the ability to recover 98% of mercury from rivers and the USGS study was supposed to be a follow on to this study.
In 2007, the first year of the study, Dr. Alpers used a 3" unmodified suction dredge to dredge a test hole in the South Yuba River downstream from the confluence of Humbug Creek and the Yuba River. This was supposed to be a mercury hotspot, and according to the state Water board and the USGS this was one of the most heavily mercury polluted areas in the state, if not the entire country. Dr. Alpers set up instruments to measure mercury levels above the dredge, right behind the dredge and downstream of the dredge and found -
The actual 3" dredge test showed no mercury being emitted from the dredge, but did find significant amounts of mercury in the dredge sluice box. This isn't the result the State wanted, and as admitted by Dr. Alpers the Water Board told him they didn't want suction dredges to be the solution to cleaning up mercury, but rather they desired suction dredges be banned.The study was re-written to comply with this directive and in the second year of the two year study Dr. Alpers didn't use a suction dredge, rather he dug a hole on the bank in the middle of contaminated tailings from Malakoff Diggins. The area where this hole was dug was above the water line where no suction dredge could ever work, and where no winter scouring flows could move the gravel. It was, in fact, an impossible place for a dredge to work.
Above. USGS actual suction dredge test. The results were never mentioned in the 2012 EIR. Photo USGS.
The hole was dug by hand, the gravel sifted through progressively finer screens until the very finest of the gravel ended up in a bucket. Mercury, being a liquid, was sifted right through each screen until it ended up in the same bucket as the fine sediment.
Above. USGS personnel taking samples of soil. These results were used in the 2012 EIR. Photo USGS.
Once bedrock was reached Dr. Alpers used a nozzle which was attached to a plastic container of water and blasted the bedrock with the water and sucked the water back up into the container, then recycled the water back through the pump impeller and back onto the bedrock.
This time the State got the results they wanted. However, these results could only be achieved by using only the most contaminated sediments which settled out of the container and allowing them to ferment for two weeks in a lab jar. The State then concluded that only two 4" dredges working on the Yuba River for a mere 100 hours could contribute nearly 10% of the entire Yuba River mercury load for a year. Even though from the Suction Dredger survey there were over 25,000 dredging hours on the South Yuba River in a given year.
The Legal Fight to Disprove the "Study"
Proving the collusion between the State and the environmental groups has been a long, expensive task. After the State published the 2012 EIR the Western Mining Alliance immediately filed suit, claiming the EIR was built on fraud and laid out the case to expose the fraud. In January 2016 the San Bernardino Superior Court put the EIR challenge on hold, awaiting the outcome of the Rinehart case currently in the California Supreme Court. An initial ruling by the San Bernardino Court in January 2015 found the regulations based on the EIR to be unconstitutional and the court voided the entire set of regulations.
In 2009 When the Alameda Court imposed a moratorium on the issuance of permits, the miners sued and overturned the ban in the Appeals Court, but by then SB 670 was passed which imposed its own moratorium.
When the miners sued to block SB 670 the legislature then passed AB 120 which required "full mitigation" for all environmental effects. A requirement never before levied by the legislature, and a requirement which the Department admitted was impossible to meet. This law too is being challenged in court as unconstitutional.
When the Department finally met all the requirements of SB 670 which included the completion of the environmental report and the publishing of new regulations the legislature passed SB 1018 which imposed an endless moratorium on suction dredging.
When the miners won their arguments in the San Bernardino Courts that the moratorium was unconstitutional, the State then passed SB 637 which sought to extend the illegal moratorium indefinitely by setting a permitting process whereby no permits existed, and no permitting scheme was even in place, and requiring even further environmental review prior to the issuance of permits.
There is considerable, clear evidence of a deliberate effort to ban suction dredging. A mining practice which all studies have found is the least destructive of all methods to extract gold from placer claims. The Department's own biologists have failed to find any evidence of harm, and have found suction dredging often provides the only habitat for salmon on a river. Yet the State continues their relentless effort to deprive miners of any motorized means of mining, while ignoring massive dredging operations in the ports, harbors and lakes. The State claims miners harm salmon while presenting not a single dead salmon while ignoring the deliberate killing of over 75,000 salmon per year on the Klamath River by Indian tribes. It's clear the conspiracy to deprive a class of people their rights is deep and intricate. The miner's lawsuits are all that stands between a State gone wild, and the restoration of personal rights.