Highbankers also illegal in California?

[mcordell]

I spoke with the DFW today and they told me any use of an engine is illegal. The dredging ban was expanded Jan 1, 2016 to include the processing of material not just suction of material. Anyone run into trouble yet?

 

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[Jeff95531]

Well, 1/1/2016 has come and passed. Haven't yet to ever run into trouble but it's hand tools, hands and pans for at least the last 5 years in my neck of the woods...which extends to a two hour radius from me. I have and use a hand powered suction dredge and have a lot of documents to back me up on it's use. Doesn't mean I don't try to push the envelope at times but hi-banking? Wouldn't recommend it. I only gamble with what I can afford to lose. Velcome to CA!

 

[Clay Diggins]

I spoke with the DFW today and they told me any use of an engine is illegal. The dredging ban was expanded Jan 1, 2016 to include the processing of material not just suction of material. Anyone run into trouble yet?

The law says nothing like that. It clearly only applies to underwater suction dredging within the current banks of a river or lake.

Read the law for yourself.

Heavy Pans

 

[Jeff95531]

Hey Clay. Not to high jack the thread but do you see my activity with a hand held dredge as perceived illegal? And in-stream sluice...but out of the 6 Rivers National Recreational Area (as in the NFS)

 

[Bill_saf]

Clay I went to the web page you posted and picked the over and as I can see this is how they are reading it to mean. I did copy and past and high lite what I found in the law that if I read it fast I would miss it.


Senate Bill No. 637
CHAPTER 680

An act to amend Section 5653 of the Fish and Game Code, and to add Section 13172.5 to the Water Code, relating to dredging.

[ Approved by Governor October 09, 2015. Filed with Secretary of State October 09, 2015. ]

LEGISLATIVE COUNSEL'S DIGEST

The people of the State of California do enact as follows:

SECTION 1. The Legislature finds and declares all of the following:

(h) Given the importance of protecting the water supply for all Californians from degradation, the need to protect what is left of California native cultural sites, and the value of protecting the state’s wildlife, it is urgent that the Legislature act immediately to clarify the laws regulating suction dredge mining and other related forms of small scale motorized gold mining in the state’s streams and waterways.

SEC. 2. Section 5653 of the Fish and Game Code is amended to read:

(g) For purposes of this section and Section 5653.1, the use of vacuum or suction dredge equipment, also known as suction dredging, is the use of a mechanized or motorized system for removing or assisting in the removal of, or the processing of, material from the bed, bank, or channel of a river, stream, or lake in order to recover minerals. This section and Section 5653.1 do not apply to, prohibit, or otherwise restrict nonmotorized recreational mining activities, including panning for gold.

SEC. 3. Section 13172.5 is added to the Water Code, to read:

13172.5. (a) For purposes of this section, the use of any vacuum or suction dredge equipment, also known as suction dredging from the bed, bank, or channel of a river, stream, or lake in order to recover minerals. This section does not apply to, prohibit, or otherwise restrict nonmotorized recreational mining activities, including panning for gold.

(3) Prohibit any particular use of, or methods of using, vacuum or suction dredge equipment, or any portion thereof, for the extraction of minerals that the state board or a regional board determines generally cause or contribute to an exceedance of applicable water quality objectives or unreasonably impact beneficial uses.


if IM wrong then Im Sorry but it can be read like that if one picks it a part.


Bill

 

[mcordell]

Bill you are 100% correct in the lines you highlighted. The DFW interprets this to include any motor used for any processing of any material for any mineral recovery. Not limited to dredging for the purpose of moving material. I was told today by the DFW Northern California office in Redding any motor used will result in the equipment being confiscated and prosecution. This is the way the DFW will enforce the law until further clarification from the Legislature.

 

[beekbuster]

"any portion thereof" "assist in the removal of" you could interprate it to make a hooka illegal if it assists you in the removal of material. very open ended f&g law that typically would be laughed at in court, but is not the case

 

[beekbuster]

"in the streams in waterways" this would mean that you could run a highbanker away from a stream, but i think any wardan would see it differently. the way its worded you can dredge or highbank in areas where no runoff can enter the water, expect to get your stuff confiscated though. im so sick of this state.

 

[Clay Diggins]

Clay I went to the web page you posted and picked the over and as I can see this is how they are reading it to mean. I did copy and past and high lite what I found in the law that if I read it fast I would miss it.


if IM wrong then Im Sorry but it can be read like that if one picks it a part.


Bill

If you treat it as English language and read the entire sentence there is no way it could be read to affect highbanking.

If you take individual parts of the sentences and recombine them you could read it to mean you can't vacuum your floors in California. Of course that's not the intent or floors and highbankers would be mentioned instead of:

known as suction dredging from the bed, bank, or channel of a river, stream, or lake in order to recover minerals.

The entire Section 5653 of the Fish and Game Code relates to permits for suction dredging. The amendments to Section 5653 of the Fish and Game Code relate to permits for suction dredging.

Nowhere in any of these codes are floor vacuuming or highbanking mentioned. The rule of the law is that laws should be narrowly construed. Otherwise you couldn't vacuum your floor or water your lawn or crops without a dredging permit. Whats next the DFW will try to convince us we can't have a vacuum cleaner within 100 yards of a stream? Fishermen couldn't have motors on their boats and anyone driving their car near a river could be arrested for using a motor near water if they don't have the non existent dredge permit.

The legislature didn't include highbanking or using stream water or driving cars for uses outside the " bed, bank, or channel of a river, stream, or lake". In fact there is no part of the law that addresses activities outside of a " bed, bank, or channel of a river, stream, or lake". Assuming this law could affect activities outside of a " bed, bank, or channel of a river, stream, or lake" would affect any use of water or motors in the extraction of minerals or anything else. That would not be a fish and water rule it would be a ban on mining and driving cars and running a camp generator and watering crops.

Find an entire sentence in the law that could be construed to apply to anything but suction dredge permits. Every sentence you highlighted contains the words "suction dredge". The preamble clearly states that the law is being amended to "clarify the laws regulating suction dredge mining and other related forms of small scale motorized gold mining in the state’s streams and waterways." Not on land, not in your car and not on your floor only "in the state’s streams and waterways". Highbanking does not take place "in the state’s streams and waterways".

Heavy Pans

 

[OwenT]

Yea the fact that it qualifies everything to be "known as suction dredging" clearly shows that the intent is not to ban highbanking and that is where we need to stand. However I know that several people have been told by DFW in the field that high banking is not allowed and I wonder if there's another law that has to do with removing water from the waterway. In WA even if you're not in the water you can be mining in the waterway because it is defined as everything below the ordinary high water line and that's a good thing because it let's us highbank without getting a water right which is required for removing water from the waterway.

 

[Jeff95531]

No permits shall be be issued as they no longer exist and yet they still seize the equipment as "we" are "now" in violation.

 

[QNCrazy]

(g) For purposes of this section and Section 5653.1, the use of vacuum or suction dredge equipment, also known as suction dredging (THE WAY I READ IT IS ANYTHING FROM THIS POINT ON DEFINES VACUUM/SUCTION DREDGING),<font color="#FF0000"> is the use of a mechanized or motorized system for removing or assisting in the removal of, or the processing of, material from the bed, bank, or channel of a river, stream, or lake in order to recover minerals. This section and Section 5653.1 do not apply to, prohibit, or otherwise restrict nonmotorized recreational mining activities, including panning for gold.

Your local LEO may not be an English major, he'll, or even a minor, but you may have to educate them. It's all about sentence structure. Highbankers are good as far as I'm concerned. All the other BS regarding permits for high banking is just that. Hello? "You need a permit but we're not issuing them at this time" I have that Q&A stored away for future litigation.

 

[Hoser John]

Leave the pump outfits at home or pay the price BIGTIME. Or when a tree falls in the forest and crashes to the ground did it really happen if no one ever sees it?? Play the game and you must be willing and able to pay the price. John

 

[fowledup]

"No sir officer, that is not a dredge or highbanker pump! That is my streamside fire protection pump! I'm an evironmental warrior who's prepared to do his part to save the flora and fauna should such a need arise! In fact I would kindly ask that you extinguish your cigarette within the vicinity of my personal space (cough cough). What those old things? Well I'm using nasty old legacy mining hand tools to dig around in the riverbank searching for Yellow Legged Mountain Frog breeding sites. Yes sir I report directly to the Sierra Fund and Center for Bio Diversity. Well better get back to it, Deep Peace be with you in your travels my brother!"
...................................Works every time!

 

[winners58]

they changed it to; the definition of a suction dredge is; the use of a mechanized or motorized system for removing
or assisting in the removal of, or the processing of, material from the bed, bank, or channel of a river, stream, or lake in order to recover minerals.

they have added the word Definition
in SB 637 its not a definition, its a meaning that relies on the word suction dredge.
whats the difference between a definition and a meaning, without context the meaning is subject to interpretation
such as "the Earth" it can mean "the planet", "the people" or "the ground" (dirt)

an air compressor, is life support, it does not process material.
a water pump, in California a claim owner or his agent has riparian rights to pump Water
the other thing is the 100 yards from the waterway and if its above the high water line its not mining the bed or bank of a river.

 

[Bill_saf]

I did not mean to stir the s-pot or under mine any one with what I found or posted or to miss lead any one. "That was not my Intention" I agree with Clay and winners, HJ. TG I don't have to put up with what you guys out in Cali have to. the wackos would have a hard time getting back here where I'm at and I can any one comming for 3/4 mile.

Bill

 

[fowledup]

they changed it to; the definition of a suction dredge is; the use of a mechanized or motorized system for removing
or assisting in the removal of, or the processing of, material from the bed, bank, or channel of a river, stream, or lake in order to recover minerals.

they have added the word Definition
in SB 637 its not a definition, its a meaning that relies on the word suction dredge.
whats the difference between a definition and a meaning, without context the meaning is subject to interpretation
such as "the Earth" it can mean "the planet", "the people" or "the ground" (dirt)

an air compressor, is life support, it does not process material.
a water pump, in California a claim owner or his agent has riparian rights to pump Water
the other thing is the 100 yards from the waterway and if its above the high water line its not mining the bed or bank of a river.

Not saying I disagree or agree with you or the others who have responded, but all I can picture is the incredibly nice and cordial LEO nodding his head and saying "Yes sir that may well be your interpretation, however mine is different, you'll notice as you peruse your citation that it gives you two options. One you can pay the fine, or two you can be at the court house on the day listed and we will both get a chance to plead our interpretations to the judge or magistrate. Now if you'd be so kind as to sign here, I'll let you get on your way. Thanks, be safe, and Have a nice day".
Doesn't matter, either way it will cost me time and money and set myself up for even more trouble down the road if I lose and I get caught again. I do have to say tho, I have never lost challenging a citation, I have a grand record of something like 3-0. However the only thing I "won" was the satisfaction of proving I was right, woohoo! As I said earlier it still cost me time and money.

 

[Goldwasher]

In California citations don't compound...so getting caught more than once won't increase your punishment. I'm not worried. They are trying to see what they can make stick.

 

[mikep691]

If you treat it as English language and read the entire sentence there is no way it could be read to affect highbanking.

If you take individual parts of the sentences and recombine them you could read it to mean you can't vacuum your floors in California. Of course that's not the intent or floors and highbankers would be mentioned instead of:





The entire Section 5653 of the Fish and Game Code relates to permits for suction dredging. The amendments to Section 5653 of the Fish and Game Code relate to permits for suction dredging.

Nowhere in any of these codes are floor vacuuming or highbanking mentioned. The rule of the law is that laws should be narrowly construed. Otherwise you couldn't vacuum your floor or water your lawn or crops without a dredging permit. Whats next the DFW will try to convince us we can't have a vacuum cleaner within 100 yards of a stream? Fishermen couldn't have motors on their boats and anyone driving their car near a river could be arrested for using a motor near water if they don't have the non existent dredge permit.

The legislature didn't include highbanking or using stream water or driving cars for uses outside the " bed, bank, or channel of a river, stream, or lake". In fact there is no part of the law that addresses activities outside of a " bed, bank, or channel of a river, stream, or lake". Assuming this law could affect activities outside of a " bed, bank, or channel of a river, stream, or lake" would affect any use of water or motors in the extraction of minerals or anything else. That would not be a fish and water rule it would be a ban on mining and driving cars and running a camp generator and watering crops.

Find an entire sentence in the law that could be construed to apply to anything but suction dredge permits. Every sentence you highlighted contains the words "suction dredge". The preamble clearly states that the law is being amended to "clarify the laws regulating suction dredge mining and other related forms of small scale motorized gold mining in the state’s streams and waterways." Not on land, not in your car and not on your floor only "in the state’s streams and waterways". Highbanking does not take place "in the state’s streams and waterways".

Heavy Pans

We operate IN the creek, using the water from that creek, moving only the gravels in the creek bed, using a generator to power a small electric pump. We don't introduce any material from outside the current water line. The "highbanker" removes the lead and mercury, and a little bit of gold in the process. Is this in violation?

 

[Jeff95531]

Not saying I disagree or agree with you or the others who have responded, but all I can picture is the incredibly nice and cordial LEO nodding his head and saying "Yes sir that may well be your interpretation, however mine is different, you'll notice as you peruse your citation that it gives you two options. One you can pay the fine, or two you can be at the court house on the day listed and we will both get a chance to plead our interpretations to the judge or magistrate. Now if you'd be so kind as to sign here, I'll let you get on your way. Thanks, be safe, and Have a nice day".
Doesn't matter, either way it will cost me time and money and set myself up for even more trouble down the road if I lose and I get caught again. I do have to say tho, I have never lost challenging a citation, I have a grand record of something like 3-0. However the only thing I "won" was the satisfaction of proving I was right, woohoo! As I said earlier it still cost me time and money.

Absolutely spot on fowledup. Speaking as a former LEO and issuing a minimum of 100 citations per week (quota? you betcha)...that is exactly how it goes down. Since I had so many to chose from, I'd only pick the ones I could easily prove and had a 98% conviction rate. And speaking as a defendant...always show up prepared cuz there's a good chance the LEO will fail to appear and you automatically walk. Still have to go thru the process of getting your stuff back, but it's a get out of jail free card.