Don't Accept the Premise

Does the State have the authority to regulate your mining?

Why Do Fish and Game Cops Have Authority to Cite You For Mining?

Most of us have accepted the notion the State of California (or Oregon, or Washington) has the right to regulate our dredging on our federal mining claims. Did you ever stop to ask "Do they?" We believe they don't.

We have accepted the premise the State has both the right and the jurisdiction to prevent us from running suction dredges on our placer claims. All to often we simply accept a premise put forth by the State. In our specific case we accepted the premise the State has the right to ban mining.

When the California Department of Fish and Wildlife issued their new regulations in 2012 some of us asked under what authority they were regulating mining claims. They responded (in writing) their authority was granted under statute 228.5, Section 5653 in which the State legislature has granted them the authority to permit and regulate suction dredges.

That's nice and it certainly sounds official, but does it grant them authority over your mining claim?

A State can't pass a law regulating federal land. That's kind of like you passing your own law to regulate your landlord and tell him how much rent he can charge, and when he can collect. Your landlord may have an issue with that since he's the lawful owner of the property. The federal government also has a problem with California passing laws which regulate federal land.

It's undisputed the State has the authority to regulate suction dredging on State land, we don't argue that. If you are mining on State land they can pretty well pass any law they please and enforce it.

What about federal mining claims? This is where it gets a bit more interesting. In fact, they have no authority to regulate us, we've simply accepted their regulation and purchased their permits because they said they have the authority.

In legal cases the first thing which must be established is jurisdictio. Jurisdiction is simply the authority to enforce laws. If you commit a crime in a county, the county sheriff has the authority to enforce laws within that county. However, that sheriff doesn't have the jurisdiction to enforce laws in the neighboring county.

Jurisdiction is similar, but no the same, as the arguments we have made in regards to federal preemption. Preemption asks the question whether one law takes precedence over another law. With so many laws on the books this issue comes up frequently. Our U.S. Constitution says a state may not prohibit what Congress has allowed.

Jurisdiction versus Preemption

Jurisdiction is the legal authority to enforce laws. May the State pass laws extending their authority over federal lands?

No, they may not. Which leads us down an interesting path. The State may not, through State action, pass a law granting them authority over fedral mining claims. This authority must be explicitly provided to them by the federal government. We know in many cases some authority to enforce state laws has been passed to the state, and agencies such as the US Fish and Wildlife Service, and the EPA have provided some authority to the states to implement laws but no authority has been passed to the State to regulate federal mining claims.

The Bureau of Land Management would need to establish what's known as a Memorandum of Agreement with the State to cede this authority, and they haven't.

Those of you who study mining law may ask, "What about the Granite Rock case?" For those of you who haven't read Granite Rock, this is the lead in to a good story, so let's explain.

The Granite Rock case is often used by the State in their arguments in the ongoing litigation. They cite the Granite Rock case to somehow justify their right to regulate the small miner right out of small mining. As the lawyers would say, "They misconstrue Granite Rock." In other words they are arguing something which Granite Rock doesn't say.

There's a big difference, one which is worthwhile to explain. In the Granite Rock case a marble mine operating on federal land in the Big Sur area challenged the California Coastal Commission's (CCC) demand they obtain a permit from them because they were operating within what's considered the Coastal Management Zone (CMZ). Two things are important here, the Granite Rock company challenged the very ability of the CCC to require a permit, and secondly they were operating in the CMZ.

The case made its way to the U.S. Supreme Court. The Supreme Court ruled the state, operating under the authority of the Coastal Zone Management Act (CZMA) had the authority to regulate the environmental effects from mining on federal lands and could require a permit. The court went on to constrain their ruling by stating the regulation could not prohibit the mining, but could only require reasonable environmental regulation. Throughout the trial the State argued they were not trying to prohibit the mining, they were simply trying to protect the environment.

The difference between suction dredging and the Granite Rock case is Congress had explicitly provided the states with authorities and responsibilities under the CMZA. In fact, the states were supposed to implement the CMZA. In suction dredging there is no such law which provides the states authority to regulate. Traditionally the states have covered their regulation through either the National Environmental Protection Act (NEPA) or the Endangered Species Act (ESA).

In the dredging litigation the states argue Granite Rock gives them the authority to require a permit but this isn't accurate. It only gives them the authority to require a permit when Congress has explicitly transferred this authority to the states.

YOu may then ask how they got away with shutting down hydraylic mining. This is the second most cited case in the State's briefings and they often refer to this as the "first environmental protection case." But, it's not.

The Sawyer Decision

The North Bloomfield mine was on private land. It was a hydraulic mine operating a huge hydraulic pit with hundreds of feet of overburden. Students of hydraulic mining will recall the natural progression of the hydraulic mines. In the first hydraulic operations they simply washed a few feet of overburden off the bedrock and recovered the gold. They quickly discovered the gold ran in a channel and they followed the channel, more ofthen than not by digging drift tunnels. As the water system of ditches and flumes became available the use of water to remove the overburden became a cost effective means of hydraulic mining and the mining companies turned to using high pressure jets of water to strip the overburden and recover the gold.

This type of mining removed billions of cubic yards of material. This material was then washed into the high gradient mountain streams where it was pushed by winter floods to the lower elevations eventually ending up in the valley where it could move no further.

In the early days of mining gold was king, and what the miners did in search of gold caused little concern. As the hydraulic operations multiplied and were required to removed more and more overburden the valley was developing. By the time of the Sawyer Decision gold was no longer king, agriculture was challenging gold for supremacy and was about on equal footing. The debris from the hydraulic operations far up into the mountains was causing extensive flooding and damage in the valley to both farms and the cities. In the North Bloomfield case a business owner brought suit after he had repeatedly had his business damaged. His suit claimed the upstream miners didn't have the right to damage downstream property owners.

This was the suit. The suit didn't attempt to ban the hydraulic monitor, but rather it sought an injunction against a "nuisance" operation. The fundamental question posed in the case was whether a person upstream could conduct activities which could cause damage to a downstream person.

The Sawyer decision simply said the upstream person had no right to cause damage to downstream property owners. It had nothing to do with the environment, it simply made a ruling based on property rights.

The court ruling affirmed hydraulic mining was legal, but the miners would have to control their debris from entering the rivers. This became an impossible task, although many tried by using debris dams which always broke and caused yet more damage.

Hydraulic mining continued for many years after the Sawyer Decision, and the use of hydraulic mining in Siskiyou County wasn't effected at all. The Caminetti Act established funding for the federal government to step in and build major debris dams and these dams still stand today. Many of the first reservoirs in California were built to catch mining debris, these reservoirs technically are there to support mining.

The Premise

For forty years we've accepted the State's premise they have the authority to regulate suction dredging. We don't believe they do. They may have a right to regulate fish and wildlife, or environmental effects which may occur outside the boundaries of your claim, but it doesn't appear they have a right to regulate your mining claim.

We should no longer accept this premise. We accepted this premise because the State made it appear as if a State statute provided them some authority which they didn't have. They misquote both Granite Rock and the Sawyer Decision. They're wrong. If you are cited for suction dredging ask your attorney to research both their jurisdiction and their authority to regulate your mining activities.

We need to stop taking statements at face value from a government which has shown itself unworthy of our trust. Challenge the premise, don't accept it.