Arguement Against 838

[Bejay]

Without even mentioning mining; a very strong argument can be made against Oregon Senate Bill 838, and all the subsequent Bills that support any part of the dredge ban as written.
The dredge ban brings forth the issue of "motorized" vs "non motorized" utilization, and bans the use of motors within the in-stream and riparian zones of rivers having adonomous fish. The anti dredge bill targets one user of motors while allowing others the right to use motors. This contradicts the State's own Constitution.
If motors can not be used by the miner then no others should be allowed the freedom to use motors. Outboard motor boats, irrigation pumps, pumps, vehicles, etc should not be allowed either. Heck.......many campgrounds and RV parks are adjacent to the rivers and stream that are home to adronomous fish. Houses with all kinds of motorized equipment lie adjacent to rivers and streams with adronomous fisheries. Why would others be allowed the freedom to enjoy and use motorized things and miners excluded from that right? Read below and I believe the strongest argument against Senate Bill 838 and all other subsequent supporting Bills actually has no need to argue mentioning mining at all. Currently all the argument against 838, by the mining community, was an attempt to show mining causes no harm etc......Or that the Bill takes away ones ability to mine effectively..... (Takings). I propose we ought to formulate opposition to the Bill by merely focusing on the unconstitutionary nature of the Bill. If mining were to become a subsidiary argument to combat the Bill I have Oregon's Water Rights Document that supports ( and even promotes) mining utilizing Oregon's waterways. But I believe the quickest way to an end supporting motorized activites (including mining) is to simply focus on Section 20.

OREGON ARTICLE I......*BILL OF RIGHTS
*******
Section 1. Natural rights inherent in people. We declare that all men, when they form a social compact are equal in right: that all power is inherent in the people, and all free governments are founded on their authority, and instituted for their peace, safety, and happiness; and they have at all times a right to alter, reform, or abolish the government in such manner as they may think proper.

Section 20. Equality of privileges and immunities of citizens. No law shall be passed granting to any citizen or class of citizens privileges, or immunities, which, upon the same terms, shall not equally belong to all citizens.


----------------------------------------- --------------------------------------------------------------- --------------------------------------------------------

Currently I am open to spearheading such a separate battle; anyone else out there willing to join in? I really need someone schooled in Oregon law and Oregon Court proceedings. I would think there may be some legal expert who would like to help take this on.

PM me if you feel you have info that would benefit meeting my request.

Bejay

 

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[Assembler]

May have something to do with "Appropriations of U.S. Waters".

 

[Bejay]

I worked on this years ago and sent it to many State of Oregon Senators


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.

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 dinamic I'll look further
Then on page 152:
APPROPRIATION OF WATER FOR MINING AND ELECTRIC POWER
UNDER 1899 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!

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

 

[Assembler]

The "Boundaries, description, and area of each parcel of the land"........"The culture and improvements within the limits of the survey" as this is the bases of the "Plats" and if accepted by the BLM, it may be termed officially established or completed, and accordingly it does not attain official or legal status until thus completed. In short the "Types of Lands" determines the use of the waters.
Any "Appropriations of U.S. Waters" before hand is 'Subject to regulations' both "motorized" vs "non motorized" utilization / intent.

 

[Assembler]

For an extended treatment of the boundary subjects, the territorial acquisitions, treaties with the foreign sovereignties, etc. go take a look at Geological Survey Bulletin 817, U.S. Department of the Interior by Edward M. Douglas.
1Dry land and land temporarily or partially covered by water, such as marshland, swamps, and river flood plains; streams, sloughs, estuaries, and canals less than one- eighth of a statute mile in width; and lakes, reservoirs, and ponds less than 40 acres in area.
2 Permanent inland water surface, such as lakes, reservoirs, and ponds having 40 acres or more of area; streams, sloughs, estuaries, and canals more than one-eighth of a statutemile in width; deeply indented embayments and sounds, and other coastal waters behind or sheltered by headlands or Islands separated by less 1 nautical mile of water; and of less than 40 acres of area. Does not include water surface of the oceans, bays, the Gulf of Mexico, the Great Lakes,
Long Island Sound, Puget Sound, and the Straits of San Juan de Fuca and Georgia, lying within the jurisdiction of the United States.
https://pubs.usgs.gov/bul/1212/report.pdf

 

[winners58]

42 U.S.C. 1983 Overview

The Oregon admissions act of 1859 says that Oregon would never interfere with the disposal of public land.
https://www.oregonlegislature.gov/bills_laws/Pages/OreConstAdmission.aspx

 

[M.E.G.]

I worked on this years ago and sent it to many State of Oregon Senators


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.

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 dinamic I'll look further
Then on page 152:
APPROPRIATION OF WATER FOR MINING AND ELECTRIC POWER
UNDER 1899 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!

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

http://www.jeffersonminingdistrict.com/mining-law/1899-Oregon-Water-Law/1899.pdf

 

[Bejay]

42 U.S.C. 1983 Overview

The Oregon admissions act of 1859 says that Oregon would never interfere with the disposal of public land.
https://www.oregonlegislature.gov/bills_laws/Pages/OreConstAdmission.aspx

Here is an interesting challenge issue as well: Senate Bill 838

"SECTION 3. (1) The Governor’s office, in consultation with the Department of Environ
mental Quality, the Department of State Lands, the State Parks and Recreation Department,
the State Department of Fish and Wildlife, the Water Resources Department, other state
agencies, the federal government, federally recognized Indian tribes and affected
stakeholders shall study matters related to mining using any form of motorized equipment
to extract gold, silver or any other precious mineral from placer deposits of the beds of the
rivers of this state, and propose a revised regulatory framework that includes but is not
limited to:"

What studies are being done? There has to be studies!

Bejay

 

[Assembler]

http://www.jeffersonminingdistrict.com/mining-law/1899-Oregon-Water-Law/1899.pdf

Thank you for the link M.E.G. From the link:

The necessity of exercising the right of eminent domain in general classes of cases is a legislative question, but whether the use in a particular instance is public or private, and the extent of the use necessary, are to be determined by the courts as questions of fact.

 

[Assembler]

Here is an interesting challenge issue as well: Senate Bill 838

"SECTION 3. (1) The Governor’s office, in consultation with the Department of Environ
mental Quality, the Department of State Lands, the State Parks and Recreation Department,
the State Department of Fish and Wildlife, the Water Resources Department, other state
agencies, the federal government, federally recognized Indian tribes and affected
stakeholders shall study matters related to mining using any form of motorized equipment
to extract gold, silver or any other precious mineral from placer deposits of the beds of the
rivers of this state, and propose a revised regulatory framework that includes but is not
limited to:"

What studies are being done? There has to be studies!

Bejay

Could be "Mining Stakeholders" or "Partnerships"?

 

[winners58]

the study was all a sham, they studied how to shut down mining, the guts of it was done behind closed doors
they redirected everything by attacking off-stream miners of eastern Oregon so that nothing was done.
but they came up with a report; https://olis.leg.state.or.us/liz/2017R1/Downloads/CommitteeMeetingDocument/96033

so now fast forward to SB 3 they are still tiring to regulate the tools used i.e. motorized equipment
I guess if its a prohibition they are not regulating anything...
SB3 still does not say to change ORS 196.810 that requires a removal/fill permit for ESH waters.
to require a permit but not issue them to just one class of people?

 

[Bejay]

I'll have to study it a little more; but as I understand it; a moratorium exist in order to allow further studies to be done. If the Law so states; that studies will be done by all those agencies listed, then studies would have to be going on and the Governor would have to be seeing to it that the process is occurring. Failure to meet the letter of the Law would have to be shown to exist. If, for the sake of discussion there is a justified failure given by the State then there would have to be a target date for the studies, and I would believe it could not be a justified failure by all listed agencies. Conditions have to be present and ongoing.

In accordance with the Freedom of Information Act, ( I know it applies to Feds but unsure if the Act applies to the State), all correspondence would have to be made available. Such inner Gov correspondence would have to show an ongoing intent or results forthcoming...IMHO

" Directs Governor's office to study certain issues related to mining using motorized equipment. Establishes surcharge on certain permits. Establishes Suction Dredge Study Fund. Continuously appropriates moneys in fund to Department of Environmental Quality. Specifies uses of moneys. Declares emergency, effective on passage."

Taken from the final passage:
"Provides that certain mining using any form of motorized equipment is subject to certain conditions. Punishes by maximum fine of $2,000. Sunsets January 2, 2016. Imposes moratorium on certain mining using any form of motorized equipment. Specifies that moratorium becomes operative on January 2, 2016. Punishes by maximum of one year's imprisonment, $6,250 fine, or both. Sunsets January 2, 2018] 2021. Directs Governor's office to study certain issues related to mining using motorized equipment. Establishes surcharge on certain permits. Establishes Suction Dredge Study Fund. Continuously appropriates moneys in fund to Department of Environmental Quality. Specifies uses of moneys. Declares emergency, effective on passage."



The condition was based on passage. The State adapted the conditions and thus the conditions must be scrutinized by the mining community or a party/person willing to take on the challenge.

Not being an Oregon Law Expert on how to go about challenging the State I would assume that having two new arguments in opposition to the Law (838) might be prudent. One does not want to degrade a challenge by listing to much.....Maybe.

Bejay

 

[Bejay]

Found this doing some further research; Oregon Court Guidelines for Briefs

Brief Formatting - Brief Writing in Oregon - LibGuides at State of Oregon Law Library

Bejay

 

[winners58]

SB 838 is repealed https://olis.leg.state.or.us/liz/2017R1/Downloads/MeasureDocument/SB3/Enrolled
most anything filed would be moot, all but the taking cases, use of water
or unable to use water that would have been used if you could mine would be similar.

was it done in bad faith, YES. the Governor and advisors have immunity from FOIA, lawyers, AG & agency's normally do not
but they find ways around it by having lawyers as advisors even though they have dual jobs, namely Brett Brownscombe.

its hard to think through things clearly with anger smoldering in the background or being so close to something
I can read and understand court cases and research laws but asking the right questions or creating a defensible argument.
might be best to talk to someone that is not emotionally involved and has the right skill set. Western Resources Legal Center (hint hint)

 

[Bejay]

Per Senate Bill (as amended and accepted) per Sec 3 Article 1. The water board was a party to the conditions set forth, thus the following is from the Oregon State Water Board/Commission:

536.320 Limitation of powers of commission. The Water Resources Commission
shall not have power: (1) To interfere with, supervise or control the internal affairs of any state agency or public corporation; (2) To modify, set aside or alter any existing right to use water or the priority of such use established under existing laws

IN-STREAM WATER RIGHTS
537.332 Definitions for ORS 537.332 to
537.360.
As used in ORS 537.332 to 537.360: (1) “In-stream” means within the natural
stream channel or lake bed or place where water naturally flows or occurs.
(2) “In-stream flow” means the minimum quantity of water necessary to support the
public use requested by an agency.
(3) “In-stream water right” means a water right held in trust by the Water Resources
Department for the benefit of the people of the State of Oregon to maintain
water in-stream for public use. An in-stream water right does not require a diversion or
any other means of physical control over the water.
(4) “Public benefit” means a benefit that accrues to the public at large rather than to
a person, a small group of persons or to a private enterprise.

----------------------------------------- ------------------------------------------------------------

All indicators point to 838 being contrary to the Oregon Costitution (motorized issue) ,Oregon Law and "On the Books" Directives.

Granted the Oregon State Legislative body that passed the Bill in Committee and forwarded it to the Govs Office; who in turn asked for an opinion by the Oregon Dept of Justice; did not give a hoot about the Laws (as so stated in the original opinion to the Govs office (later resubmitted with an approval by a DOJ head) )

Bejay

Bejay

 

[Bejay]

Sections ORS 468B.052 and sections 2, 3, 4, 12 and 13, chapter 783, Oregon Laws 2013.
2 3 4, 12 and 13 were repealed and the rest was amended. So far I can not find the Bill in its entirety...but I am working on it...thanks for the info. I saw 838 had been amended by Senate Bill 3 but had not found the amendment till you posted it. Tks Much. I'll see If I can put all of it together....working on it. Tks again

But upon further review I see the major argument will return to "motorized".

And I'll point out that "all others" are still using motors and that the Bill targets one user alone!

Bejay

 

[winners58]

536.320 Limitation of powers of commission. The Water Resources Commission
shall not have power: (1) To interfere with, supervise or control the internal affairs of any state agency or public corporation; (2) To modify, set aside or alter any existing right to use water or the priority of such use established under existing laws

IN-STREAM WATER RIGHTS
537.332 Definitions for ORS 537.332 to
537.360.
As used in ORS 537.332 to 537.360: (1) “In-stream” means within the natural
stream channel or lake bed or place where water naturally flows or occurs.
(2) “In-stream flow” means the minimum quantity of water necessary to support the
public use requested by an agency.
(3) “In-stream water right” means a water right held in trust by the Water Resources
Department for the benefit of the people of the State of Oregon to maintain
water in-stream for public use. An in-stream water right does not require a diversion or
any other means of physical control over the water.
(4) “Public benefit” means a benefit that accrues to the public at large rather than to
a person, a small group of persons or to a private enterprise.

--

I don't understand, all that means is, of all the users taking water from a stream, there needs to be a minimum left over to keep the stream flowing.
a suction dredge does not take water from a stream therefore does not need to utilize a water right, a high-banker can use the 5000 gallon exception.
or for other mining you might have vested water rights that go with the land or get temporary rights or borrow from a neighbor.

I think that section was mostly for the water fight in the middle snake and upper Klamath
for irrigation, that section of ORS 563.320 that is now mostly controlled by Sue & Settle
they gave all the in-steam rights to the tribes, last winter the tribes got a court ordered release on the Klamath during flood stage.

 

[Assembler]

Water Resources Department Flow Restoration in Oregon

 

[Bejay]

When Oregon was made a State the Federal Government never gave the water to the State. The Feds kept the water for the people....the water belongs to the people and is even Granted to the miner. However the State was given the right to regulate the equitable use of the water...so that no one person or persons could use it all. The exception to the rule, that I know of, is where the use is taken to supply a benefit to the public in general. Such as "drinking water supply and hydro/flood dams to some extent.....as the water continues to flow except for possibly lakes with no outlet.

Tribal issues are most likely a "treaty" issue.

Bejay

 

[Bejay]

Getting back to the original Admissions Act Adapted by Oregon. There is no mention of Oregon owning the water or having exclusive rights except for those Rivers that are used as a determination of the boundaries. However, as pointed out earlier by you (winner58) the issue of disposal is brought forth twice in the Admissions Act. That being "Be it ordained by the Legislative Assembly of the State of Oregon, That the said State shall never interfere with the primary disposal of the soil within the same by the United States, nor with any regulations Congress may find necessary for securing the title in such soil to the bona fide purchasers thereof".

If one realizes the intent of "valuable mineral discovery" that I brought forth for clarification; one must accept that mining claims are part of the disposal process....even though Congress has placed a hold on "Patenting".

Bejay