Legal Rights to Dredgeing???
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  1. #1
    us
    Dec 2010
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    Legal Rights to Dredgeing???

    I have been following these statements on another forum- makes sense to me.
    But


    Originally posted by leocic

    Boxy, are you sayin' we should give up and never fight to dredge again... ?

    leocic I'm saying you don't have to "fight" to dredge - just dredge.

    The last thing the State wants is to have to explain to a district judge that their right to study salmon is greater than your right to extract valuable minerals under the 1872 mining act. The 1866 and 1872 mining acts grant water rights for mining purposes. That right has never been repealed and supersedes the State's right to talk about studying fish.

    If they ever write a ticket and the right to mine is used as a defense they may find themselves without the ability to control dredging in California. They don't want that. That is more than likely the reason no tickets have been written in almost two years of this nonsense.



    Originally posted by Boxy



    Although I agree with you about just going out and dredging anyway, can you show us where it says we have a right to dredge in the 1872 mining law or the 1866 mineral estate grant. If that right is clear then I will be happy to go out and dredge with someone.



    Originally posted by rockbuster



    Hey rockbuster, the right to mine involves all the methods that are potentially productive. There are no restrictions spelled out in the mining laws nor are there ANY methods specified.

    California, at one time, tried to outlaw hydraulic mining, many people today, including most government employees, would tell you that is the law.

    Here is the actual law on the books today:
    The business of hydraulic mining may be carried on within the state wherever and whenever it can be carried on without material injury to navigable streams or the lands adjacent thereto.

    Yep that's the whole thing! You might also notice that the law only applies on state land, not public lands.

    Your right to mine is not restricted by method - only results.

    Tell you what rockbuster, when you can show me a law that specifically permits you to eat carrots or fly kites or make babies I'll believe there needs to be a law that specifically allows me to pan or dredge or sluice for gold.


    Originally posted by Boxy


    Now that is funny
    Don't get to defensive there Boxy, it was a simple question that I was hoping you had a simple answer for.

    Since you mentioned "Your right to mine is not restricted by method - only results' I can see where laws are easily implemented to restrict mining. Can you please point out where in the mining law or Mineral Estate Grant law where it specifically says you can mine by any means without restriction? I have the 1872 mining law printed out, but perhaps I only have the short version or something because I just donít see it. You also say that the law applying to hydraulic mining is: "The business of hydraulic mining may be carried on within the state wherever and whenever it can be carried on without material injury to navigable streams or the lands adjacent thereto". There must be more to it than that. First, what you posted does not mention anything about the law applying to state land only, unless you forgot to add that is the clause. Second, what does injury to adjacent land mean exactly? I know that my father who has been with Homestead Mining for 30 + years was never allowed to purchase hydraulic equipment for any of their mining sites and he was the head purchasing agent for that group. I consider your knowledge about mining law to be good enough to follow, but like MEG there is a lot of information (Pertinent) that is left out. I personally can't afford the fines associated with breaking the law, but I would gladly stand with anyone in court who was fined for mining, for the purpose of solidarity. Please let us know when you plan on coming out to CA to do some public awareness dredging and I will gladly tend the sluice for you.
    All I am asking for here is honest knowledgeable guidance on what the laws really are, not some hot headed absentee opinion about what you would do if you were here. Perhaps Jerry would have a more credible reply to this line of questioning?


    Originally posted by rockbuster


    I didn't find your post offensive rockbuster. I'm just trying to illustrate my point that once a right is established there is no need to fill in the details with laws describing all the things you can do with that right. You and I have the right to eat and make babies and mine. If you are waiting for someone to make a law to tell you how you can do those things you will be waiting a long long time.


    Originally posted by rockbuster


    Since you have the mining acts perhaps you need help understanding them? Here are some court decisions that explain the clear wording of those acts.
    "[A]ll valuable mineral deposits in lands belonging to the United States...shall be free and open to exploration and purchase, and the lands in which they are found to occupation and purchase." The free access policy allowed the miner to engage in mineral activity without advance notice or permission to explore, develop, purchase and obtain surface land title on lands where deposits were found. Supervisory power was delegated to the local miners themselves, whose rules and regulations were ratified by federal law. Delegation also went to the states, many of which had already adopted regulations. (See 1905 Butte City Water Co. v. Baker.)

    In 1922, the Court in Oklahoma v. Texas (258 U.S. 574, 599-600) held that the broader language of the 1872 Act did not change the application of free access from that of the 1866 Act.

    I encourage you and every miner to read and understand the Supreme court decision in Heydenfeldt v. Daney Gold & Silver Mining Company 93 U.S. 634. In this case the Supreme court makes it clear that the State's were not granted the mineral lands when they were formed and that the U.S has the absolute right to grant them to miners under the 1866 and 1872 mining acts. Mineral lands are not within any State but are instead are reserved as public lands.
    You can read the decision here:
    http://supreme.justia.com/us/93/634/case.html


    Originally posted by rockbuster

    You also say that the law applying to hydraulic mining is: "The business of hydraulic mining may be carried on within the state wherever and whenever it can be carried on without material injury to navigable streams or the lands adjacent thereto". There must be more to it than that. First, what you posted does not mention anything about the law applying to state land only, unless you forgot to add that is the clause. Second, what does injury to adjacent land mean exactly?

    The text of the law clearly states that it applies "within the state". I'm not sure how much clearer it could be that it does not apply to public or private lands.
    If you doubt that this is the entire text of the hydraulic mining law within California please read it for yourself, you will find that what I posted are all the words exactly as they are written in the law.
    Read it here:
    http://codes.lp.findlaw.com/cacode/PRC/1/d3.5/4/s3981

    Adjacent lands are those private or public lands that border California State lands. Only the land that the State of California OWNS is "within" California. Most of the land on California State is either private or public land very little is "within" California.


    Originally posted by rockbuster

    I know that my father who has been with Homestead Mining for 30 + years was never allowed to purchase hydraulic equipment for any of their mining sites and he was the head purchasing agent for that group.

    The purchasing decisions of the company your father worked for do not amount to law.


    Originally posted by rockbuster

    I consider your knowledge about mining law to be good enough to follow, but like MEG there is a lot of information (Pertinent) that is left out. I personally can't afford the fines associated with breaking the law, but I would gladly stand with anyone in court who was fined for mining, for the purpose of solidarity. Please let us know when you plan on coming out to CA to do some public awareness dredging and I will gladly tend the sluice for you.
    All I am asking for here is honest knowledgeable guidance on what the laws really are, not some hot headed absentee opinion about what you would do if you were here. Perhaps Jerry would have a more credible reply to this line of questioning?

    Obviously creditability is in the mind of the beholder in your case. I prefer to rely on law rather than administrative hearings or pursuing cases where I have no standing. I present you with facts. I am happy to supply you with my sources should you choose to study them. I will not come to California to settle your problems for you, I am not looking for a "wing man" perhaps Jerry is, I've heard he is an accomplished dredger and experienced miner. Perhaps you could join him on his next dredging expedition?


    Posted: Yesterday at 9:06pm
    Thank you for the reply Boxy, and I do always appreciate your information. I would also appreciate a little further clarification from your post, if you don't mind.

    "[A]ll valuable mineral deposits in lands belonging to the United States...shall be free and open to exploration and purchase, and the lands in which they are found to occupation and purchase." The free access policy allowed the miner to engage in mineral activity without advance notice or permission to explore, develop, purchase and obtain surface land title on lands where deposits were found. Supervisory power was delegated to the local miners themselves, whose rules and regulations were ratified by federal law. Delegation also went to the states, many of which had already adopted regulations. (See 1905 Butte City Water Co. v. Baker.)

    What form of delegation went to the states? Where does the states control of federal land end and begin? Please donít say the states have no control over federal land within their borders, as that would be completely false information being that stewardship was delegated to all states by the DOI. The hydraulic mining law that you posted "The text of the law clearly states that it applies "within the state"": All Federal land lies within states therefore the law is referring to federal land, right? I do wish that some of the absent miners that advocate the ideal that mining rights supersede states rights would put their money where there mouth is and come demonstrate their willingness to fight for those rights. It just seems odd that the experts are everywhere except where the problem lies. You are correct in your post that credibility is an issue, and by all means that is how it should be. I mentioned Jerry because he is an expert in mining and land rights, and yet he has not called for miners to ignore any of these laws. I hope that all this mess does get washed out in the end, but I am sure it is going to have to be settled in the courts. I have no desire, nor can I afford to be, a martyr here so I guess someone else will have to take the hit. I guess the cause would have to be much greater to get an outsider to come in and show us all that this issue is not just a CA issue (It is not Ė wait and see)


    Posted: Yesterday at 10:36pm
    Originally posted by rockbuster

    Thank you for the reply Boxy, and I do always appreciate your information.

    You are welcome rockbuster. I hope what I write will help to educate and enlighten miners.
    Originally posted by rockbuster

    "[A]ll valuable mineral deposits in lands belonging to the United States...shall be free and open to exploration and purchase, and the lands in which they are found to occupation and purchase." The free access policy allowed the miner to engage in mineral activity without advance notice or permission to explore, develop, purchase and obtain surface land title on lands where deposits were found. Supervisory power was delegated to the local miners themselves, whose rules and regulations were ratified by federal law. ]Delegation also went to the states many of which had already adopted regulations. (See 1905 Butte City Water Co. v. Baker.)

    What form of delegation went to the states? Where does the states control of federal land end and begin? Please donít say the states have no control over federal land within their borders, as that would be completely false information being that stewardship was delegated to all states by the DOI.


    As the mining act says the States were delegated a co-existent regulatory authority. There are several types of regulatory authority that States may exercise. The most obvious is the right of the State to define the method and procedure for staking and filing a claim. Additionally courts of the region (usually county court) have original jurisdiction over disputes between miners. The State has the right to oversee the safety of the workplace for it's citizens. Please note that the Supervisory role was given to the miners themselves along with the federally ratified right to make rules and regulations.

    The States do not have control over federal land within their borders. Please review Article I Section 8 of the U.S. Constitution, Powers of Congress:
    To exercise exclusive Legislation in all Cases whatsoever, over such District (not exceeding ten Miles square) as may, by Cession of particular States, and the acceptance of Congress, become the Seat of the Government of the United States, and to exercise like Authority over all Places purchased by the Consent of the Legislature of the State in which the Same shall be, for the Erection of Forts, Magazines, Arsenals, dock-Yards, and other needful Buildings; And
    To make all Laws which shall be necessary and proper for carrying into Execution the foregoing Powers, and all other Powers vested by this Constitution in the Government of the United States, or in any Department or Officer thereof.

    You might also take note of Article IV Section 3 of the U.S. Constitution, New States:
    The Congress shall have Power to dispose of and make all needful Rules and Regulations respecting the Territory or other Property belonging to the United States; and nothing in this Constitution shall be so construed as to Prejudice any Claims of the United States,


    That is where the power comes from to reserve the mineral lands from the States. So YES the public lands of mineral character are specifically excluded from being within the 12 western states. Those public lands of the U.S. are not federal lands either. Please read my posts again and realize that I have never referred to the mineral lands as being federal in character, they are explicitly Not federal they are public lands of the United States. They are held in trust for the people of the United States. This is not a minor point, understanding the difference is critical to understanding the Mineral Estate Grant.

    The DOI has no power to make laws or to delegate authority to any State. The Department of the Interior is an executive branch (Presidential) agency. Note above that the power to dispose of the territory and property of the United States is exclusive to the legislative branch (Congress).
    Originally posted by rockbuster

    The hydraulic mining law that you posted "The text of the law clearly states that it applies "within the state"": All Federal land lies within states therefore the law is referring to federal land, right? I do wish that some of the absent miners that advocate the ideal that mining rights supersede states rights would put their money where there mouth is and come demonstrate their willingness to fight for those rights. It just seems odd that the experts are everywhere except where the problem lies. You are correct in your post that credibility is an issue, and by all means that is how it should be. I mentioned Jerry because he is an expert in mining and land rights, and yet he has not called for miners to ignore any of these laws. I hope that all this mess does get washed out in the end, but I am sure it is going to have to be settled in the courts. I have no desire, nor can I afford to be, a martyr here so I guess someone else will have to take the hit. I guess the cause would have to be much greater to get an outsider to come in and show us all that this issue is not just a CA issue (It is not Ė wait and see)


    To address your challenge in bold above I offer you Article VI Clause 2 of the United States Constitution:
    This Constitution, and the Laws of the United States which shall be made in Pursuance thereof; and all Treaties made, or which shall be made, under the Authority of the United States, shall be the supreme Law of the Land; and the Judges in every State shall be bound thereby, any Thing in the Constitution or Laws of any State to the Contrary notwithstanding.


    I hope this clears up some misperceptions about the status of public mineral lands and their relationship to the States that they are not within but adjacent to.



    Posted: Today at 5:24am
    From the BLM website it looks very vague on how much power the BLM has handed over to the States if any. I am going to call them and see if they would also stand with the local Sheriff to protect us from the CDFG. All it would take is a few Sheriff/BLM VS CDFG battle WINS and the CDFG would be forced to run away with their yellow stripe down there back crying. The CDFG is the only agency with the possibly of the Forrest Service the only people that would mess with us. So here is the scneario CDFG/Forrest Service tells us to stop Dredging for Gold. We tell them to stand-bye while local Sheriff is called along with the BLM if they are on our side. Make sure to have the 1872 Mining LAW on your person.

    STATE REQUIREMENTS--Provisions of the Mining Law allow for the development of local rules that are consistent with federal law. Therefore, individual states can have their own manner of locating and recording mining claims, tunnels sites, and mill sites. Always check with the appropriate state for state specific laws and regulations.
    SURFACE MANAGEMENT (43 CFR 3809)
    BLM regulates surface management on mining activity conducted on lands administered by BLM. Other federal agencies such as U.S. Forest Service have different regulations regarding surface management; if a claim is located within another agency's administrative jurisdiction, the claimant needs to check with that agency for proper procedures.
    All mining activities require reasonable reclamation. The lowest level of mining activity, "casual use," is designed for the miner or weekend prospector who creates only negligible surface disturbance (for example, activities that do not involve the use of earth-moving equipment or explosives may be considered casual use). Dredging at any level of use may require a permit from the appropriate state agency administering water quality.
    The second level of activity, where surface disturbance is 5 acres or less per year, requires a notice advising BLM of the anticipated work 15 days prior to commencement. This notice needs to be filed with the appropriate field office. No approval is needed although bonding is required. State agencies need to be notified to assure that their requirements are met.
    For operations involving more than 5 acres, a detailed plan of operation must be filed with the appropriate BLM field office. Bonding is required to ensure proper reclamation.



    Originally posted by wkmccl

    What's the GPAA stand on this? If they don't have a legal dept., they need one. It's going to hurt them too! They will not stop with dredging or Calf.


    Who is "They" wkmccl?

    Near as I can tell "They" consists of the California Karuk Tribe, some California New 49ers, a California judge, some --deleted-- California legislators, a wimpy California Governor and the California Department of Fish and Game.

    Are you noticing a trend here? Hint: California.

    We are mining without interference here in the southwest, although there are no public lands in Iowa I'll bet you are not having problems with your Fish and Game Dept. there. Maybe the Californians need to clean up their own rat's nest rather than claiming it's some giant conspiracy about to take over mining?


  2. #2
    us
    retired bumb and part time Hobo

    May 2005
    St. Louis, missouri
    6,211
    5047 times

    Re: Legal Rights to Dredgeing???

    We are mining without interference here in the southwest, although there are no public lands in Iowa I'll bet you are not having problems with your Fish and Game Dept. there. Maybe the Californians need to clean up their own rat's nest rather than claiming it's some giant conspiracy about to take over mining?


    [/quote] actually theres a lot of interferance with these state F&G,COE and state DNR people in most states. the USFS/COE covers all the states and water bodies/wetlands and even now private ponds/lakes/riparian areas in the USA! and they sahre info on other states and ideas on how to controll more land and restrict our usage of our land.and its getting worse!

  3. #3
    us
    My Hearts Desire

    Nov 2010
    Camptonville, CA
    GMT&GM3 Whites MXT Pro, Shadow X5, Fisher 1280, OMG and the TDI
    1,608
    1294 times
    Prospecting

    Re: Legal Rights to Dredgeing???

    hey hefty great post
    russau LOL I wish, California hates anything that has mining to its name even quarry mining that helps with paving roads
    Hefty, did ya get your Camp permits from Forest circus? I did
    First Paragraph reads
    Thank you for your request for parking permits for (mining claims names ) mining operations for 2011 mining/dredging season.

    also i was wondering how do you go about finding out if someone did get there dredge confiscated they have to be cited, if they have not been cited it would be illegal search and seizsure ,right? i mean the whole idea behind putting a dredge in the water now is to challenge validity sb670 or ab120
    2cmorau
    The enemies of liberty will not rest, and neither can we.

  4. #4
    us
    Mar 2011
    White's MXT/6X10 DD Coil/950 Coil
    246
    5 times

    Re: Legal Rights to Dredgeing???

    i know this is a touchy subject to the fellow prospectors (dredgers) in california, but it might just come down to what I said would happen if an Alabamian was dredging way back woods and was approached by whoever sanctions those laws..... THE MINERS WILL HAVE ENOUGH eventually and it WILL turn into all out war...

    www.southeasterngold.com
    http://goldprospectingtips.blogspot.com

  5. #5
    us
    Dec 2010
    1,703
    1485 times

    Re: Legal Rights to Dredgeing???

    Thanks 2cmorau

    Nope i dont apply for anything from those clowns anymore, the less they know about the less they nose around.
    Since when did they start with the parking permits
    From what i understand from my last post THEY dont have the right to stop us from mining what anyway we are mining. Period

    Im going up in the mornin.

    Hefty

  6. #6
    us
    Dec 2010
    1,703
    1485 times

    Re: Legal Rights to Dredgeing???

    Might try asking stopher if anyone has been cited. But then again he doesnt know how to tell the truth.

    Hefty

  7. #7
    us
    Dec 2010
    1,703
    1485 times

    Re: Legal Rights to Dredgeing???

    Or just ask here

  8. #8
    us
    Dec 2010
    1,703
    1485 times

    Re: Legal Rights to Dredgeing???

    Lets just all go dredgeing. Drive them crazy. Let them huff it out from the deep woods. Then they can carry me out to.

    Hefty

  9. #9
    us
    Mar 2011
    White's MXT/6X10 DD Coil/950 Coil
    246
    5 times

    Re: Legal Rights to Dredgeing???

    Quote Originally Posted by Hefty1
    Lets just all go dredgeing. Drive them crazy. Let them huff it out from the deep woods. Then they can carry me out to.

    Hefty

    Times are rough and people do this to put food in their families mouths. When someone gets in the way of a man trying to feed and shelter his loved ones, people will do ALL means necessary to to prevent it.

    www.southeasterngold.com
    http://goldprospectingtips.blogspot.com

  10. #10
    us
    Feb 2011
    Tillamook, OR
    White's 4900/D Pro Plus
    207
    27 times
    Prospecting

    Re: Legal Rights to Dredgeing???

    OK so they say you can't dredge, but they don't say you can't hi-bank. So set up a hi-banker with a couple of tubs for settling and then if it's necessary slip on you houka, take a bucket and go down and fill it. Then bring it up and run it through the HB and do it again and again until you're down to bed rock, then widen the hole and so on. If you're pulling your water out of a screened bucket stuck in an inner tube you're not harming the little fishy's. You're also not atomizing any mercury into the methyl variety or turbitizing the water.

    You are still going to get the gold outta that hole and the state can take a squat on a sharp stick.

    Gramps
    It is better to die fighting evil than to live under it.

  11. #11
    us
    Mar 2003
    Redding,Calif.
    5,854
    6708 times
    All Types Of Treasure Hunting

    Re: Legal Rights to Dredgeing???

    1/10 the capacity, 1/1000 the fun, and now object of torment for the CDFG and FS cops too. Never stopped and never will---F'M'-John

  12. #12
    us
    retired bumb and part time Hobo

    May 2005
    St. Louis, missouri
    6,211
    5047 times

    Re: Legal Rights to Dredgeing???

    Good Luck John! i wish i was there with you! this will come to a head sooner or latter and all hlls gonna break lose when it does!

  13. #13
    us
    My Hearts Desire

    Nov 2010
    Camptonville, CA
    GMT&GM3 Whites MXT Pro, Shadow X5, Fisher 1280, OMG and the TDI
    1,608
    1294 times
    Prospecting

    Re: Legal Rights to Dredgeing???

    i have tried but i can't find asnything on those that have been cited, wish i knew what county.
    my thinking is go out have fun and if your cited make sure its for the sb670 crap. they can't keep us from mining on our claims
    how many of ya would like to join me in highbanking on my claim? its on the N Fork Yuba River very visible from hwy49
    The enemies of liberty will not rest, and neither can we.

  14. #14
    us
    retired bumb and part time Hobo

    May 2005
    St. Louis, missouri
    6,211
    5047 times

    Re: Legal Rights to Dredgeing???

    thanks for the offer but i cant afford to get there! heck of a deal!!!

  15. #15
    us
    Feb 2008
    Kentucky
    White's MXT; backup - BH Pioneer 505
    573
    14 times
    Prospecting and coin shooting

    Re: Legal Rights to Dredgeing???

    Don't ignore proprietary jusrisdictions, where state and local laws also apply on federal lands. Yes, federal laws will "over rule" state or local laws, but they do not nullify or void them.

    I do know of a couple people who continue to dredge in CA. Their fear of getting caught and fined/arrested is overshadowed by the fact that they have to feed their families. After many months of applying for jobs (to no avail), dredging was a viable alternative that they determined was worth the risk.

    What a mess out there in the "golden" state. If I lived there, I'd probably be dredging right now...
    Lookin' and pickin'!

 

 
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