So You Want to Dredge in Oregon Huh?

Bejay

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The following is a very recent article by an individual working for the Eugene Register Guard Newspaper. The reason for this posting is to show the relevancy to mining. This article is about "LOGGING" but it makes some very profound statements that are WRONG and also voices ignorance. Yet this kind of opinion article is the very same means/method by which "dredging" is under attack. Make no mistake: Timber Harvest in Oregon was second to nothing else regarding the benefits to the Oregon Economy. The following article now brings forth private property....not just public!



"Oregon rivers need modern forestry rules"

By Tim Palmer

For The Register-Guard

Dec 11, 2014
"Atention has been given to Oregon’s federal forests and their multiple uses, from the spotted owl controversy of the 1980s, to the hard-earned restoration of salmon spawning habitat, to the O&C debate now raging. Yet 38 percent of Oregon forests are privately owned, and more than half of that belongs to industrial timber companies, with principally one goal in mind."

"Understandably, that goal is to maximize profits by logging. But the consequences go far beyond money in the bank. The harvest of trees covering nearly one in five acres of Oregon’s forests has dramatic outcomes on the streams flowing through those lands. That water is owned by the state, [WRONG!]which means all of us.
Even more important, industrial logging affects the waterways downstream — rivers and estuaries sustaining sport and commercial fisheries with their related jobs, food and recreation, plus drinking water to homes, towns and cities. A half-century of science has confirmed repeatedly that the steepness of logged slopes, the amount and type of road construction, the closeness of logging to waterfronts, and the intensity of both soil and canopy disturbance all govern how well our streams will be protected — or how severely they’ll be degraded. Those facts justify state government’s role in establishing and enforcing effective standards of harvest under the Oregon Forest Practices Act.

The problem here lies with “effective.” Oregon law and regulations allow cutting on slopes of any steepness — straight-up is not too much, except in specific places where public safety is known to be at risk. They permit logging within 20 feet of most waterways. They require no buffer whatsoever for small streams without fish. The rules sanction aerial spraying of herbicides within 60 feet of streams (as if the wind doesn’t blow), and the dousing of toxins directly on small streams (as if their water doesn’t flow into larger streams).

Analysis of the rules of surrounding states — even Idaho — found that all had substantially higher standards than Oregon.
To be fair, some logging companies —including giants as big as Weyerhaeuser — sometimes practice higher levels of performance. Others don’t. Modernized rules would level the playing field for all.

The effects of industrial logging cause streams to warm beyond acceptable standards of temperature — standards intended not for optimum water quality but to curb the grossest loss of habitat needed by native fish. The federal Environmental Protection Agency has long recommended that Oregon upgrade its regulatory program to protect stream temperatures, as other states have done.

With direct implications to its own forestry program, the State Department of Forestry’s RipStream study found that logging on industrial land caused a greater rise in water temperature than logging elsewhere with wider buffers. We’ve known that better buffers were necessary even before the state’s Independent Multidisciplinary Science Team recommended them to the governor back in 1999.

Recent analysis by Ph.D biologist Christopher Frissell, using the state’s own findings, indicated that no-cut buffers of at least 100 feet are needed to maintain stream temperatures. A hundred feet is not much, given 6 million acres of industrial forest land in Oregon. Uncut forest buffers shade the streams and keep them cool, stabilize banks with roots, and filter muddy runoff that’s headed toward the water from disturbed areas nearby.

This topic is timely because the Board of Forestry is considering upgrading its rules to require wider no-cut streamside buffers.

Other precautions are needed to prevent the spraying of herbicides on homes and people like what sickened residents of Cedar Valley near Gold Beach in 2013.

Additional measures, such as those required by Washington state to identify hazard zones, could minimize landslides that routinely damage salmon habitat. I personally saw this in 2012 when the entire “buffer strip” slid into the South Fork Coquille River and its choice chinook spawning beds after massive acreage was clearcut above the buffer. Despite outward appearances — hundreds of feet of shoreline reduced to an oozing quagmire the whole way upslope to the timber sale — the logging met compliance with regulations, according to state officials.

It’s time for Oregon to join the 21st century.

Action on the Board of Forestry’s current agenda won’t solve all the problems caused by irresponsible logging on industrial land, but it’s a step in the right direction to safeguard the streams, fish, wildlife, and water that are owned by us all.

Tim Palmer of Port Orford (Tim Palmer - Home) is the author of “Field Guide to Oregon Rivers,” “Rivers of America” and other books."

=========================================================================================

Spells it out......one can see the similarities.

OH AND BY THE WAY....THE STATE OF OREGON DOES NOT OWN THE WATER. WHEN THE STATE WAS MADE INTO A STATE THE FEDERAL GOVERNMENT RETAINED THE WATER FOR ALL THE PUBLIC. THE MINER WAS GRANTED THE USE OF THE WATER SHORTLY AFTER OREGON BECAME A STATE. OREGON WAS GIVEN THE RIGHT TO SEE THAT THE WATER WAS USED BY THE PUBLIC EQUITABLY ( NO ONE PERSON COULD HAVE ALL THE WATER). ADDITIONALLY THE STATE WAS GIVEN THE AUTHORITY OVER NAVIGABLE WATERWAYS....AND THE LANDS BENEATH THEM.

Personally I would like to ask the author: "Just where do you think the gravels/cobles/boulders/pebbles/silts come from that make up a river/stream spawning system? Just how do you think the grand canyon was formed? Maybe land slides/erosion etc? Pretty stupid author IMHO!
Bejay
 

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enamel7

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Hey, you can go to his home page and send him a message. Let him know he's wrong about the water ownership.
 

rodoconnor

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Enamal , he probably knows. He surely lives by the doctrine that if you repeat a lie often enough, it becomes the truth.
 

Maka

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I am encouraged that the author is frustrated by the States refusal to regulate to the level HE thinks is appropriate.
Sounds like saner minds prevail there.

A Federal Judge recently ruled that the States do NOT have the authority to regulate activities on Federal Lands.
The immediate affect was to render null and void the State of California's recent anti dredging ( Gold prospecting ) rules as well as Oregon's upcoming dredging restrictions in 2015.

This also applies to logging or any other human activity on Federal lands.
If all non navigable water ways in Oregon are Federal and not State owned, can the State regulate fishing in and on them?
 

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Bejay

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Maka Quote: "If all non navigable water ways in Oregon are Federal and not State owned, can the State regulate fishing in and on them?" End Quote

The State does have the right to regulate the taking of wildlife (game animals....game fish).....except those that are Federally Protected.....per the ESA. Then of course the Feds (USFWS) has authority. We see preemption even occurs regarding Federally Protected Species.

I'll bring forth a recent case in point. The State listed a species as ENDAGERED. The State had the ability to regulate private and state owned lands per that listing. BUT the State had no jurisdiction to regulate the states listed species on the Federally managed lands. So the State had to convince the Feds to upgrade the listing of the species to match that of the States' listing. The Feds fought the State tooth and nail. But the State got the local "greenie group organizations" to challenge the Feds. Eventually the Feds got tired of battling the State and raised the species listing from "THREATENED" TO "ENDAGERED". Then the public land areas in question became closed.

The salmon/steelhead Federal listings....and resulting Federal agency oversight is the "straw that broke the camels back" issue confronting public land use issues today. Notice the author brought forth that one issue. The ability of a State to convince the Feds to join them, is an issue we must comprehend. Are the Feds standing up for the miner or are they (USFS....BLM) bowing to the DEQ etc and jumping on the "protect the fish" issue. (Keep in mind the word "GRANT")

Second case in point must be the economic issue. Timber is/was the premier monetary supplier driving the Oregon economy for a lot of years. It has taken a turn for the worse. If such an economic timber benefit failed to stir the powers to be....mining has little chance of winning utilizing the economic benefits. In Oregon, economic benefits derived from utilization of natural resources are frowned upon. IMHO.

So what does the miner have that no other individual has? That is the "Mineral Estate Grant". Miners must understand it and know how to maintain it. Unfortunately the State takes advantage of the miner's lack of knowledge. That gives the State power....and we see where that ends up today!

Bejay
 

Sticks

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can you go over the mineral estate grant Bejay? My claims are right in the heart of this greenies target area. Please keep us posted on that federal ruling that nullified the deq permit for fed lands. I would love links that I can copy and print to keep in camp. I have heard rumors that they are now trying to list a spotted frog or something that would shut us down. I do not know if that would be fed or state listed. I am on Fed Land. I say " F-em"
 

oregonmp03

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found this interesting

http://www.oregon.gov/OSMB/access/docs/navigabilitybrochure.pdf
"When Oregon became a state in 1859, all the land
underlying waterways that were used, or could have
been used, in their natural condition to transport
people and goods, became state-owned.
The state also became the owner of all land underlying
water affected by the tide, as well as many lakes."


ttp://www.oregon.gov/DSL/NAV/Pages/whoownsthewaterways.aspx

"Question: Which waterways do the people of Oregon own?
Answer: The people of Oregon own the submerged and submersible land underlying all navigable streams, rivers, and lakes in most cases up to the ordinary high water line."

Is it me or do these say two completely different things?
 

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Bejay

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can you go over the mineral estate grant Bejay? My claims are right in the heart of this greenies target area. Please keep us posted on that federal ruling that nullified the deq permit for fed lands. I would love links that I can copy and print to keep in camp. I have heard rumors that they are now trying to list a spotted frog or something that would shut us down. I do not know if that would be fed or state listed. I am on Fed Land. I say " F-em"

americanmininglawforum.myfastforum.org :: Index

Bejay
 

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Bejay

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found this interesting

http://www.oregon.gov/OSMB/access/docs/navigabilitybrochure.pdf
"When Oregon became a state in 1859, all the land
underlying waterways that were used, or could have
been used, in their natural condition to transport
people and goods, became state-owned.
The state also became the owner of all land underlying
water affected by the tide, as well as many lakes."


ttp://www.oregon.gov/DSL/NAV/Pages/whoownsthewaterways.aspx

"Question: Which waterways do the people of Oregon own?
Answer: The people of Oregon own the submerged and submersible land underlying all navigable streams, rivers, and lakes in most cases up to the ordinary high water line."

Is it me or do these say two completely different things?

HELLO!

Do you suppose States and Feds disagree? Do you suppose the States (politics) steer the ship? Do you suppose the "Tail Wags the Dog". Do you suppose people allow themselves to be led down the wrong path....just because Gov wants to take them there? Do you suppose Laws exist, and agencies assigned the task of administering them get it wrong?

What do you make of this:

I thought it might be interesting to see how a State (in this case Oregon) might come to feel they have water rights over the miner, who was Granted those exclusive rights to water per the Federal Mining Laws. In other words where does the State of Oregon get the idea they can require a miner get a dredge permit.....where is their projected authority derived? Now the following is from the current Oregon Law Book of Water Resources. (sorry for the poor foremat but best I could do)
From the 2010 Oregon Law Book:
537.334 Findings.
The people of the State of Oregon find and declare that:
(1) Public uses (of water) are beneficial uses.
(2) The recognition of an in-stream water right under ORS 537.336 to 537.348 shall not diminish the public’s rights in the ownership and control of the waters of this state or the public trust therein. The establishment of an in-stream water right under the provisions of ORS 537.332 to 537.360 "shall not take away or impair any permitted, certificated or "decreed right" (do you suppose the Federal Grant is a decreed right?) which [" is a legislative grant, and being given by act of congress, is equivalent to a patent from the United States to the same."] to any waters or to the use of any waters vested prior to the date the instream
water right is established pursuant to the provisions of ORS 537.332 to 537.360." [1987 c.859 §3]
537.335
Wow....that is pretty dynamic I'll look further
Then on page 152:
APPROPRIATION OF WATER FOR MINING AND ELECTRIC POWER
UNDER 1899 ACT (this is the states own Act)
541.110 Use of water to develop mineral resources and furnish power. The use of the water of the lakes and running streams of Oregon for the purpose of developingthe mineral resources of the state and to furnish electric power for all purposes, is declared to be a public and beneficial use and a public necessity. Subject to the provisions of the Water Rights Act (as defined in ORS 537.010), the right to divert unappropriated waters of any such lakes or streams or such public and beneficial use is "granted".
NOW NOTE THAT THE ABOVE REFERENCES THE Oregon Water Law of 1899. IF YOU GO TO THE SWOMA SITE AND LOOK UP THE ACUTAL WATER LAW OF 1899 YOU WILL BE VERY SURPRISED OF YOUR FINDINGS!

========================================================================

30 U.S. Code § 51 - Water users’ vested and accrued rights; enumeration of uses; protection of interest; rights-of-way for canals and ditches; liability for injury or damage to settlers’ possession
Current through Pub. L. 113-100. (See Public Laws for the current Congress.)
US Code
Notes
Updates
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Whenever, by priority of possession, rights to the use of water for mining, agricultural, manufacturing, or other purposes have vested and accrued, and the same are recognized and acknowledged by the local customs, laws, and the decisions of courts, the possessors and owners of such vested rights shall be maintained and protected in the same; and the right-of-way for the construction of ditches and canals for the purposes herein specified is acknowledged and confirmed; but whenever any person, in the construction of any ditch or canal, injures or damages the possession of any settler on the public domain, the party committing such injury or damage shall be liable to the party injured for such injury or damage.

Bejay
 

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oregonmp03

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so being from Oregon and seeing your posts BeJay I'm guessing you don't actually have the "proper state permits" when dredging?
 

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Bejay

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so being from Oregon and seeing your posts BeJay I'm guessing you don't actually have the "proper state permits" when dredging?

Foolish You.

Laws are meant to be followed. I would never suggest breaking the law! But this conversation is over! You can take a horse to water but you can't make him drink. Breaking law is not a wise thing to do unless you are willing to stand up for the "rule of law".


Bejay
 

Clay Diggins

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The first United States land patent was issued on March 4, 1788, to John Martin.[1] That patent reserves to the United States one third of all gold, silver, lead and copper within the claimed land.

Some real good reading here on LAND patents...

still looking for water patents...

I wouldn't rely on "Team Law" to feed a stray cat much less buy into their drivel on patents.

Do your own due diligence. You will see why I dislike people that mislead others for their own profit - people like Team Law.

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KRIKITTS

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I wouldn't rely on "Team Law" to feed a stray cat much less buy into their drivel on patents.

Do your own due diligence. You will see why I dislike people that mislead others for their own profit - people like Team Law.

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Thanks Clay, I'll keep looking for more material... got any you'd recommend?
 

Clay Diggins

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Thanks Clay, I'll keep looking for more material... got any you'd recommend?

Bejay brought up some valid points for consideration here. It's now been derailed with a silliness about patent copies being a valid method to get fee simple title to property.

Since you, and the folks who believe in Team Law magic, think the two are somehow connected let's start with the simple notion that patents are not subject to property taxes. I think this simple bit of fact would have taken the wind out of the sails of the Team Law group when I pointed out their error to them more than five years ago. Since they continue to promote their product despite being appraised of the true facts I have to assume they are nothing but con men. This goes to the heart of their property tax argument and was the first of many Supreme Court decisions that I have shown to them. I won't even bother with refuting again their nonsense about "bringing a patent forward" through a warranty deed (private insurance).

Wilcox v. Jackson 38 U.S. 498 (1839)

There is your study material. If you need more consider Davies Warehouse Co. v. Bowles, 321 U.S. 144, 155, 64 S.Ct. 474, 480, 88 L.Ed. 635 (1944) or United States v. Little Lake Misere Land Co., 412 U.S. 580, 591, 93 S.Ct. 2389, 2396, 37 L.Ed.2d 187 (1973) or any of dozens of Supreme Court decisions since 1839.

__________________________________________________

On the subject of this thread:

The NPDES permit offered by Oregon to dredgers is based on an enforcement memorandum agreement with the EPA. Ignoring for the moment that the Army Corps of Engineers has authority over dredging in "Waters of the United States" - not the EPA. This permit is based on the agreement that instream dredging is a point source of water pollution. The Supreme Court has ruled twice that instream sediment is not a point source nor is it pollution under the Clean Water Act. End of story. End of the EPA's enforcement authority. End of the State of Oregon's enforcement agreement as it relates to dredging.

Literally Oregon has made a permit based on an agreement that the United States Supreme Court once in 2002 and again in 2012 declared the EPA (and by extension Oregon State) has no power to control or enforce.

I see no reason to delve into any details or arguments. Neither the EPA nor the State of Oregon can claim that instream dredging is within their jurisdiction as a point source of pollution. No permit is necessary no matter how many times or in how many different ways it is offered. No preemption, mining rights or jurisdiction argument is needed. This is a settled matter that all courts are bound to obey.

Keep it simple. :thumbsup:

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Clay Diggins

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HELLO!

Do you suppose States and Feds disagree? Do you suppose the States (politics) steer the ship? Do you suppose the "Tail Wags the Dog". Do you suppose people allow themselves to be led down the wrong path....just because Gov wants to take them there? Do you suppose Laws exist, and agencies assigned the task of administering them get it wrong?

What do you make of this:

I thought it might be interesting to see how a State (in this case Oregon) might come to feel they have water rights over the miner, who was Granted those exclusive rights to water per the Federal Mining Laws. In other words where does the State of Oregon get the idea they can require a miner get a dredge permit.....where is their projected authority derived? Now the following is from the current Oregon Law Book of Water Resources. (sorry for the poor foremat but best I could do)
From the 2010 Oregon Law Book:
537.334 Findings.
The people of the State of Oregon find and declare that:
(1) Public uses (of water) are beneficial uses.
(2) The recognition of an in-stream water right under ORS 537.336 to 537.348 shall not diminish the public’s rights in the ownership and control of the waters of this state or the public trust therein. The establishment of an in-stream water right under the provisions of ORS 537.332 to 537.360 "shall not take away or impair any permitted, certificated or "decreed right" (do you suppose the Federal Grant is a decreed right?) which [" is a legislative grant, and being given by act of congress, is equivalent to a patent from the United States to the same."] to any waters or to the use of any waters vested prior to the date the instream
water right is established pursuant to the provisions of ORS 537.332 to 537.360." [1987 c.859 §3]
537.335
Wow....that is pretty dynamic I'll look further
Then on page 152:
APPROPRIATION OF WATER FOR MINING AND ELECTRIC POWER
UNDER 1899 ACT (this is the states own Act)
541.110 Use of water to develop mineral resources and furnish power. The use of the water of the lakes and running streams of Oregon for the purpose of developingthe mineral resources of the state and to furnish electric power for all purposes, is declared to be a public and beneficial use and a public necessity. Subject to the provisions of the Water Rights Act (as defined in ORS 537.010), the right to divert unappropriated waters of any such lakes or streams or such public and beneficial use is "granted".
NOW NOTE THAT THE ABOVE REFERENCES THE Oregon Water Law of 1899. IF YOU GO TO THE SWOMA SITE AND LOOK UP THE ACUTAL WATER LAW OF 1899 YOU WILL BE VERY SURPRISED OF YOUR FINDINGS!

========================================================================

30 U.S. Code § 51 - Water users’ vested and accrued rights; enumeration of uses; protection of interest; rights-of-way for canals and ditches; liability for injury or damage to settlers’ possession
Current through Pub. L. 113-100. (See Public Laws for the current Congress.)
US Code
Notes
Updates
Authorities (CFR)
prev | next
Whenever, by priority of possession, rights to the use of water for mining, agricultural, manufacturing, or other purposes have vested and accrued, and the same are recognized and acknowledged by the local customs, laws, and the decisions of courts, the possessors and owners of such vested rights shall be maintained and protected in the same; and the right-of-way for the construction of ditches and canals for the purposes herein specified is acknowledged and confirmed; but whenever any person, in the construction of any ditch or canal, injures or damages the possession of any settler on the public domain, the party committing such injury or damage shall be liable to the party injured for such injury or damage.

Bejay

Can I "like" this twice?

Nice work Bejay! :thumbsup:

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