NOTICE OF PUBLIC HEARING

[Hefty1]

NOTICE OF PUBLIC HEARING
[FONT=Calibri,Calibri][FONT=Calibri,Calibri]Amend Subdivision (a) of Section 228
Title 14, California Code of Regulations (CCR)
Re: Suction Dredging
In response to requests from interested and affected parties, the Department of Fish and Wildlife (Department) has scheduled a public hearing to receive comments on its proposal to amend the regulatory definition of suction dredging in the California Code of Regulations, Title 14, Section 228, subdivision (a). The Department will hold a public hearing meeting on the following date and location:
Thursday, June 5, 2014
3:00 p.m. to 5:00 p.m.
Resources Building Auditorium
1416 9[/FONT][/FONT][FONT=Calibri,Calibri][FONT=Calibri,Calibri]th [/FONT][/FONT][FONT=Calibri,Calibri][FONT=Calibri,Calibri]Street, 1[/FONT][/FONT][FONT=Calibri,Calibri][FONT=Calibri,Calibri]st [/FONT][/FONT][FONT=Calibri,Calibri][FONT=Calibri,Calibri]Floor
Sacramento, California 95814.
The Resources Building Auditorium is wheelchair accessible. At the public hearing, any person may present statements or arguments orally or in writing relevant to the proposed amendment described in the Notice of Proposed Regulatory Action (Notice File No. Z-2014-0415-23). The Department requests, but does not require, that the persons who make oral comments at the hearing also submit a written copy of their testimony at the hearing.
Any interested person, or his or her authorized representative, may submit written comments relevant to the proposed regulatory action to the Department. All written comments must be received by the Department at the office below no later than 5:00 p.m. on June 9, 2014. All written comments must include the true name and mailing address of the commenter. When submitting comments, please indicate whether you agree to accept subsequent notices for this rulemaking electronically. Written comments may be submitted by mail, fax, or e-mail as follows:
California Department of Fish and Wildlife
Helen Birss, Branch Chief
Habitat Conservation Planning Branch
1416 9[/FONT][/FONT][FONT=Calibri,Calibri][FONT=Calibri,Calibri]th [/FONT][/FONT][FONT=Calibri,Calibri][FONT=Calibri,Calibri]Street, 12[/FONT][/FONT][FONT=Calibri,Calibri][FONT=Calibri,Calibri]th [/FONT][/FONT][FONT=Calibri,Calibri][FONT=Calibri,Calibri]Floor
Sacramento, CA 95814
Fax: (916) 653-2588
E-mail: [email protected]
[/FONT][/FONT]

 

Amazon Forum Fav 👍

DR.ÖTEK Metal Detector, Waterproof Gold Detector, Pinpoint & Terrain Modes, Professional Metal Detector - Grab it through Amazon!

[Bejay]

Do you think the CDFW is back peddling and trying to appease a mediation process and avoid a court decision?....per the Mandatory Settlement Conference (“MSC”). I think so! Another maneuver to appease and delay. If the CDFW walks into the court chambers and submits a plan towards reaching an "out of court settlement/agreement" between the two sides the judge will (IMHO) delay any commitment to issuing a judgement. IMHO.


Bejay

 

[goldenIrishman]

Of course they are Bejay! They've already got the outcome decided and I'll bet ya dollars to doughnuts that this is nothing more than yet another "Dog & Pony" show to make it look like they're on the up and up.

 

[Hefty1]

Do you think the CDFW is back peddling and trying to appease a mediation process and avoid a court decision?....per the Mandatory Settlement Conference (“MSC”). I think so! Another maneuver to appease and delay. If the CDFW walks into the court chambers and submits a plan towards reaching an "out of court settlement/agreement" between the two sides the judge will (IMHO) delay any commitment to issuing a judgement. IMHO.

Bejay

Or is the judge giving CDFW time to fix their screw-up (oversite they say). Judge doesnt want to make a judgement on
something that wasnt done properly.

 

[Hefty1]

They have already been given a heads up......

March 31, 2014



Ms. Helen Birss, Branch Chief​

Habitat Conservation Planning Branch SUBMITTED VIA [email protected]​

1416 Ninth StreetSacramento, CA 95814

Re: Proposed Suction Dredge Mining Regulations

Dear Ms. Birss:
Pacific Legal Foundation (PLF) is a nonprofit law firm that litigates in defense of a balancedapproach to environmental protection, which respects property and other constitutional rights. PLF has extensive experience litigating environmental issues under California and federal law. For instance, PLF has participated in some of the ongoing litigation concerning the Department’s regulation of suction dredge mining. It also regularly participates in the administrative process at the state and federal level.PLF appreciates this opportunity to comment on the proposed regulations. PLF is concerned that,as written, the regulations fail to allow commercially feasible use of federal mining claims that can only profitably be mined through the use of suction equipment. If the Department does not modify the regulations to provide for this mining, the regulations will be inconsistent with federal law and preempted.
​

IBACKGROUND ON FEDERAL MINING LAW​

The primary source of federal mining law is the Mining Act of 1872.​

1 This straightforward piece of legislation was enacted at a time when Congress encouraged westward expansion. The law makes federal lands “free and open to exploration.”
2 Anyone who discovers mineral deposits receives a​

1​

30 U.S.C. §§ 22-42.​

2 30 U.S.C. § 22.

Ms. Helen Birss,
Branch Chief
March 31, 2014
Page 2

statutory right to extract and sell these minerals.​

3 Congress’ intent in opening public lands to exploration was to reward and encourage the discovery of economically valuable minerals.
4 Insubsequent legislation, Congress expounded on the federal policy promoted by the Act, declaring an “economically sound and stable domestic mining . . . industr[y]” important to the economy and national security.
5 Federal law also regulates the environmental consequences of mining on federal lands. For example, the Forest Service has promulgated regulations requiring mining to minimize adverse environmental impacts.
6 Nevertheless, the chief purpose of federal mining law remains to encourage the development of mineral resources located on federal land.
​

II THE PROPOSED REGULATIONS DO NOT MAKE ROOM FOR THE COMMERCIALLY FEASIBLE MINING OF FEDERAL CLAIMS​

The proposed regulations prohibit any suction dredge mining, leaving available only recreational methods of working these claims. These methods will not permit the profitable development of many mining claims. Experience under the existing regulations demonstrates that the owners of mining claims on federal lands will be unable to make a living from these methods.​

7 Indeed, miners have been forced to leave the state to ply their trade elsewhere, where mining is commercially feasible.

83 30 U.S.C. § 22; United States v. Locke, 471 U.S. 84, 86 (1985).​

4​

United States v. Coleman, 390 U.S. 599, 602 (1968); S. Dakota Min. Ass’n Inc. v. Lawrence County, 155 F.3d 1005, 1010 (8th Cir. 1998).​

5​

Mining and Minerals Policy Act of 1970, § 2, 30 U.S.C. § 21a.​

6​

See, e.g., 36 C.F.R. § 228.1.​

7​

See Gold non-Rush: California bans dredge mining, Associated Press, Aug. 8, 2009, available at​

California bans suction dredge mining - US news - Environment | NBC News Michelle Macaluso,​

Gold-sucking technique dredges up California controversy, FoxNews.com, Apr. 14, 2013, available at​

Gold-sucking technique dredges up California controversy | Fox News DawnHodson,​

As gold hits $1,700/oz. dredgers lament lost income, Placerville Mountain Democrat,Feb. 1, 2012, at A1, available at http://www.mtdemocrat.com/news/as-gold-hits-1700oz-dredgers-lament-lost-income/.​

8​

See OregonWild.org, Suction Dredge Mining, http://www.oregonwild.org/waters/mining/suctiondredge-mining (last visited Mar. 31, 2014).​

Ms. Helen Birss,
Branch Chief
March 31, 2014
Page 3
​

III UNLESS THE PROPOSED REGULATIONS ARE AMENDED, THEY WILL BE PREEMPTED BY FEDERAL LAW​

Under the Constitution’s Supremacy Clause, federal law trumps inconsistent state laws.​

9 The Supreme Court’s decision in California Coastal Commission v. Granite Rock Co., provides the basic frame work for determining whether the proposed regulations are preempted.
10 In that case, a company holding a federal mining permit brought a facial challenge to the California Coastal Commission’s authority to impose additional state permitting. The Supreme Court considered whether state permitting “stands as an obstacle to the accomplishment of the full purposes and objectives of Congress.”
11 The Court held that it did not, relying heavily on two factors: the posture of the case—a facial challenge to the permit requirement per se rather than an as-applied challenge to particular conditions—and the limited extent to which the Coastal Commission’s “environmental” regulation frustrated the Mining Act’s policy of promoting resource extraction on federal lands.The first Granite Rock factor—whether the posture of the case leaves the effect of the challenged state law uncertain—weighs against the proposed regulations. They effect a total ban on the use of suction dredges to exploit federal mining claims. As an outright ban, the proposed regulation does not even countenance a process of case-by-case administration and variation, such as was the case in Granite Rock. The Department could cure this deficiency by amending the proposed regulations to provide for case-by-case determination whether the use of suction dredge equipment is necessary for the commercially feasible use of a federal claim.Secondly, Granite Rock distinguished a general permitting requirement from a state prohibition of mining on federal land. The Court implied it would be scrutinized much more rigorously. In fact,the Coastal Commission conceded that a total ban on mining activities would be preempted. But the Supreme Court construed the preemptive effect of the Mining Act to encompass more than outright bans. It hypothesized an environmental regulation “so severe that a particular land use would become commercially impracticable.”
12 By practically dictating the uses—or non-use—of this land,​

9​

U.S. Const. art. VI, cl. 2.​

10​

480 U.S. 572 (1987).​

11​

Id. at 581.​

12​

Id. at 587.

Ms. Helen Birss,
Branch Chief
March 31, 2014
Page 4

such a regulation would “determine basic uses of federal land [rather than] regulat[ing]” it,frustrating the Mining Act policy encouraging the extraction of minerals from federal lands.13​

The proposed regulations are so severe that it is commercially infeasible for many miners to work their claims. They dictate the non-use of this property, which is precisely the result that​

Granite Rock forbids. By allowing only recreational mining to continue in this area, the moratorium frustrates the value of federal mining claims, creating a strong disincentive against their discovery and exploitation. This disincentive directly conflicts with the Mining Law’s encouragement of this discovery and exploitation. Therefore, there is a significant risk that the regulations, as proposed,are preempted.
​

CONCLUSION​

The Department should reconsider the proposed regulations. In particular, it should consider the serious risk that, as proposed, the regulations are preempted by federal law. To avoid this preemption problem, the Department should expressly provide for the regulated use of suction dredges in federal claims that otherwise would not be commercially feasible to work.

Sincerely,
JONATHAN WOOD
Attorney and CPIL Fellow
Pacific Legal Foundation​

13

 

[midnightmoon]

It's hard to keep up with all of this stuff.

Thank you for bringing us up to speed Hefty1.

 

[Hoser John]

This is because they SCREWED UP and did NOT renew the 5 year ban and absolutely NO other reason. I posted prior with "their" explaination on this(and many other forums). What ya think they do things according to law hahahaha-John

 

[fowledup]

This is because they SCREWED UP and did NOT renew the 5 year ban

Or.....My glass half full hope is, it was 100% on purpose. They messed up from the get go, they knew it and needed a way out. They are not real happy with their bed partners counter suing them, not to mention the Sue and Settle bs is finally drawing the negative attention it fully deserves.