Regulators Gone Wild

Insane Regulations Overstep the Bounds of What is Permissable Under the Law

Regulations so crazy you couldn't make it up

Steamship

Regulators say suction dredges may dredge up one of these. Please avoid dredging up steamships on your claim.

Suction dredging for gold was banned in California based on the results from an environmental impact report (EIR) completed in 2012. This was the third environmental review conducted on the use of suction dredges and the results were stunningly speculative.

EIRs have now become the favorite weapon for environmental groups and the tool of choice to implement this weapon is the government. Laws which were originally established for valid reasons, such as cleaning up waterways which had a tendancy to catch on fire, have now been turned against the citizens whose environmental impact is so miniscule as to be hardly worth noting. The law which requires an environmental review in California is known as the California Environmental Quality Act, or CEQA. This law was passed in 1970 shortly after the federal environmental protection act known as NEPA.

The purpose of an environmental impact report is to evaluate the potential environmental impacts of a project on the environment so the public and decision makers are informed of these impacts. It was not to be used as a weapon to stop projects. The original intent was to identify impacts, determine if there were ways to lessen or avoid those impacts and the project would go forward.

For example, if in the EIR it's found a suction dredge could possible suck up frog eggs, then the impact has been identified. Ways to avoid the impact would be established such as "sucking up frog eggs is prohibited" and a set of regulations which minimized impacts to the extent possible would be issued.

The twist the California legislature added to suction dredging was all impacts were supposed to be reduced to zero. A requirement not actually found in the law, and a requirement which the California Department of Fish and Wildlife has admitted is impossible to meet.

If you haven't read the entire 1,388 page EIR that banned dredging we don't blame you. We'll cover some of the more insane impacts which suction dredging is apparently supposed to cause.

Historical and Archaeological Resources

The conclusions of an EIR list impacts which are considered "less than" significant and then there are impacts which the agency finds which are considered "significant and unavoidable." These significant and unavoidable impacts are the impacts which can't be lessened to an acceptable level no matter how hard the agency tries and they become great big red herrings sitting out there awaiting attack by the environmentalists.

According to the 2012 EIR suction dredging can have a significant, meaning a substantial adverse change, impact on culturual, historical and archaeological resources. This particular impact caught our attention because suction dredges work in the rivers and streams, not on dry land. Undoubtedly there are few resources of any value within the banks of a river which has flooded repeatedly over the past few hundred years causing any particular "resource" to either be ground to pulp or moved so far from its original location as to be value less to researchers who study these things.

Chapter 4.5 of the EIR deals with cultural resources and the discussions begins with,

"Many cultural resources are known to exist in the rivers where suction dredge mining could occur. Some cultural resources meet the criteria of significance defined in CEQA section 15064.5, and would be considered historical resources for CEQA purposes, while others may not meet the criterial."

From the above statement we learn the entire state of California is considered prime dredging area, including the Salton Sea by the way. We also learn one of these resources may be located anywhere within the State, that it isn't identified, but it may or may not be important, and a suction dredge is going to destroy it.

The natural question is what is it, and where is it? Without that information there is no way to lessen the impact. So CDFW just took the easy way out and said they could be anywhere. The "what is it" question is a little more interesting.

Those of us who dredge come across junk and trash in the river all the time. Square nails, old bits of iron, pieces of machinery, old mine track and lots of lead. These are now known as cultural, historical and archaeological resources. They are the remnants of old mining operations, towns, mines and sometimes just plain trash. Even though the town, house, mine or machine these bits came from have long since been burned or destroyed and the pieces are a long ways from their original sites, the State now considers these pieces pretty darn valuable to researchers who will by the way, never find them.

Shipwrecks. Really?

Well, when we pushed the State on this question they responded they were really concerned about old shipwrecks.

"Damage to, or destroying of, historically significant submerged vessels would be a potentially significant impact...As both recorded, and unrecorded submerged vessels may exist in locations wehre suction dredge mining may occur, potential damage to such resources is considered a significant impact."

No kidding, shipwrecks. We can't dredge because we may dredge up (and destroy) a shipwreck. They don't tell us where these shipwrecks are exactly, because they don't know, but apparently these steamships made it all the way up the Yuba River to Downieville where they could drop off cargo. Apparently the odds of coming across a shipwreck are so serious it's impossible to mitigate by issuing a regulation which says if you come across a giant sunken ship move your dredge to somewhere else.

No kidding, that's what we're accused of. That's why the threat of dredging destroying the environment is so severe, these devices must be banned. They don't tell us where these shipwrecks may be in relation to dredges, because that's a State secret - well, not really. You see the State actually keeps a database of where these are but you wouldn't know it now. You see they used to have this database online for us the taxpayers to actually see where there are. When we cited this database, and used it for our legal arguments the State made it go away. This is the second time the State made a website vanish after we cited the website in our legal arguments. The shipwreck database used to be located at http://www.shipwrecks.slc.ca/shipwrecksdatabase. You can't find it anymore, it's gone. What it used to show you, and we still have the screen shots, is the location of every documented shipwreck in California. How many were in dredging areas? Exactly zero.

Facts are stubborn things, but if you deny people access to the facts you can pretty well write anything you want in an EIR and it's unchallengeable. It's unchallengeable no matter how absurd it is because the law says the Courts can't challenge an agency's conclusions no matter how stupid they are. So the easy way to make sure stupid conclusions aren't challenged by dredgers is to make sure we don't have access to the information which shows how stupid they are.

Now, we're not sure where you dredge, but where we dredge the odds of hitting a sunken sidewheel steamship are about the same odds of a golden meteor hitting our dredge. Zero.

It would be funny except this stuff is what banned dredging. The presence of sunken shiprecks in dredging rivers means you can't dredge anymore. Oh, did we mention the State has decided any sunken vessel older than 50 years is now a historic resource. You know that john boat you sunk in the 70's? Well if you try to retrieve it now you can't it's a State protected resource.

Don't Step on the Grass!

Poison Oak

New regulations say you can be cited and fined for damaging poison oak on your claim. New saying is any green, let it be.

"Section 228(k)(4) - No person shall remove or damage woody riparian streamside vegetation during suction dredge operations." This was the original wording prior to the final regulations being issued, the final regulations dropped the term "woody riparian" from the regulation. So the regulation now reads "No person shall remove or damage streamside vegetation during dredging operations."

The strike of "woody riparian" from one version to the next indicates this wasn't simply some over administrative mistake. It tells you they really don't want you to "damage" any plant along the stream and they actually thought about this, probably had hours long meetings in conference rooms where they debated the definition and finally issued a regulation which makes it illegal for you to step on grass and bruise a leaf.

Yup, you can't step on the grass, or any plant along the streamside. Forget about trying to get rid of that poison oak, it's now protected by the State. You can be cited and jailed for damaging poison oak.

Don't Move that Boulder

Miners

It's back to the future as California bans the use of motorized devices to move boulders. We hope you have a lot of friends to help move them.

Section 228(k)(3) - Motorized winching or the use of other motorized equipment ot move boulders, logs, or other objects is prohibited.

We think sometime in the 1600's humans invented types of engines to assist them in their labor. The State of California in 2012 banned the use of engines in placer mining. Note it's legal to use your hands, back and twenty of your best friends to move the same boulder, but it's illegal for just you and your winch to move it. Theoretically you could bulldoze it, excavate it, blow it up, smash it to dust so long as you don't use a motorized winch.

So let's just run this absurd regulation out during a normal dredging day, it would go something like this;

Jim's 15' down in a dredge hole and encounters a large boulder he can't move by hand. It is pretty difficult to move a couple hundred pound boulder straight up, while underwater using a dead lift, but Jim, being a concious dredger and wanting to comply with every single stupid regulation figures he'll comply. So he pulls out of the dredge hole, drives to town, or at least somewhere he can get cell phone service and contacts the CDFW receptionist who tells him he'll have to call back tomorrow because their boulder specialist is currently in the field.

The next morning Jim is up early and calls the Boulder Specialists number where he reaches voice mail and leaves a message for the Boulder Specialist to call him. He waits around and finally gets a call back around 4 p.m. informing he can't move the boulder without written permission and a stream alteration permit and he'll have to file for a motorized winching permit.

The next morning Jim drives to the CDFW office and submits his boulder winching permit to remove the boulder. He waits and is told the permit will have to be reviewed and they'll let him know in 4-6 weeks whether he can remove the boulder. Three weeks later he receives a request for additional information including pictures of the boulder, exact GPS location and a certification letter from a State biologist saying no endangered plants or animals will be harmed duing boulder removal operations. Jim gets all the information lined up and resubmits in a week. Four weeks later he receives his winching authorization for this one boulder and a statement telling him me must post the notice to a tree during boulder moving operations, and close out the permit once the boulder is moved. Jim finally brings in the winch and moves the boulder.

After six weeks the boulder is gone, he hops in the hold runs the dredge for 20 minutes and hits another boulder and starts all over again.

Regulations Meant to Prohibit

These are only a sampling of some of the ridiculous regulations the State has tried to force upon us. If not for the Western Mining Alliance, and those who have been supporting us, the State would be getting away with this. It's clear these regulations are only meant to prohibit you from mining, they are not by any meaning of the word "reasonable." It's OK for every boulder in the river to move with one of those big spring floods, but it's not OK for a dredger to move a single boulder. It's OK for a spring flood to rip out the entire channel's worth of vegetation, but not OK for a dredger to step on grass or kill some poison oak.

These are the regulations we're currently challenging in the litigation. Our arguments are in, the State has responded and some day the judge will rule whether this passes for environmental protection, or whether its simply another means to keep you from your rights granted by the U.S. Congress.