Here is the long doc
Dear Sirs and Madames:
Re: Gold Panning and Use of Mineral Collection Tools in Auburn State Recreation Area
Your email to the California State Parks ("CSP") Director's Office has been referred to
me for a response. I am the Superintendent of the Gold Fields District which includes
Auburn State Recreation Area ("ASRA"). My staff and I have spoken with several
visitors about many of the concerns you raised in your correspondence; namely, the
issue of which tools are appropriate for gold panning in ASRA. I have reviewed your
email correspondence and have researched the corresponding policies. This letter is
intended to clarify the rules pertaining to the use of mineral collection tools in ASRA.
ASRA contains both State and Federal lands, though the vast majority of the ASRA land
is Federal land either owned or administered by Bureau of Reclamation ("Reclamation")
and managed by CSP.1 Management of Reclamation land is governed by the
Management Partner Agreement ("MPA") between the Bureau of Reclamation and the
State of California for the Administration, Operation, Maintenance and Development of
Recreation Uses and Facilities at Folsom Lake, Lake Natoma, and Auburn Dam and
1 Almost all of the public land within the ASRA that is adjacent to the American River, where presumably
all gold panning activities in question would occur, is either owned by Bureau of Reclamation or other
Federal lands which have been withdrawn from mining activities and which are administered by
Reclamation through agreements. (See Management Agreement No. 12-LC-20-0017, Exhibit A.)
Correspondence re: Gold Panning Tools in ASRA 8 25 16
Steven Lehr, et al.
August 25, 2016
Page Two
Reservoir Area and Project Lands (Managing Agreement No. 12-LC-20-0017) ("MPA").2
This area is also governed by the Code of Federal Regulations, the Public Resources
Code, the CSP regulations (California Code of Regulations Title 14),3 as well as the
ASRA Interim Resource Management Plan.4
Management Agreement with Reclamation and California State Parks ("MPA")
The MPA is the main document that establishes governing policies for the Federal lands
in the ASRA. The MPA regards the continued administration, operation, maintenance
and development of public recreation facilities, protection of natural and cultural
resources and provision of public health and safety at Folsom Lake, Lake Natoma and
Auburn Dam and Reservoir Area Project Lands." (MPA p. 5.) Section 11 explicitly
addresses the relationship of State and Federal jurisdiction. It states,
In accordance with this MPA, the State will be responsible for providing
the following services in the Project Area: visitor services, law
enforcement and emergency services, recreation facility maintenance,
management of recreation and public use, environmental compliance,
resource protection and management as defined in subsection (v)
The State will ensure that land use and administration of the Project Areas
will conform to all applicable Federal laws, rules, regulations, policies, and
Executive Orders (Exhibit "I"). Where State policy, law and/or regulations
are more stringent, but do not conflict with Federal policy, law and/or
regulations, the State's will be the required standard.
(MPA, Section 11, p. 22, emphasis added.) This language clearly establishes that State
laws concerning natural resource protection shall govern, unless there is a Federal law
that preempts the State law.
Code of Federal Regulations
Title 43, Part 423 of the Code of Federal Regulations applies to the ASRA managed
lands. Part 423.3 notes that this regulation governs "as well as any regulations
established by the [non-federal managing] entity, the terms of the entity's contract with
Reclamation, and applicable Federal, State and local law." (43 CFR § 423.3 (c).)
2 Available here:
http://www.parks.ca.gov/pages/500/files/MPA_Exhibits.bdf.
3 Available here:
https://govt.westlaw.cornicalregs/Browse/Home/California/CaliforniaCodeofRegulations?guid=19B44DC50
D47F11DEBCO2831C6D6C108E&originationContext=documenttoc&transitionType.Default&contextData
=(sc.Default)
4 Available here:
http://www.parks.ca.goviDages/21299/files/7 -
%2Ousbr%20auburn%20auburn%20sra%20interim%2Ormp%201992. pdf.
Correspondence re: Gold Panning Tools in ASRA 8 25 16
Steven Lehr, et al.
August 25, 2016
Page Three
43 CFR § 423.29 (a) states, "You must not destroy, injure, deface, remove, search for,
disturb, or alter natural resources or cultural resources, including abandoned buildings
or structures, on or in Reclamation facilities, lands, or waterbodies except in accordance
with § 423.29(g) and other applicable Federal, State, and local laws." (43 CFR § 432.29
(a).) 43 CFR § 423.2 defines natural resources as "assets or values related to the
natural world, including, but not limited to, plants, animals, water, air, soils, minerals,
geologic features and formations, fossils and other paleontological resources, scenic
values, etc. Natural resources are those elements of the environment not created by
humans." (43 CFR § 423.2.) Thus, in the absence of a law that specifically permits the
destruction of natural resources, one must not negatively impact natural resources on
BOR lands. CSP has observed destruction of natural resources and and/or near river
banks due to various gold panning activities. Under 43 CFR § 423 et seq., CSP must
not permit such destructive activities.
The Public Resources Code and the California Code of Regulations
Pursuant to the MPA and 43 CFR § 423 et seq., State law also applies in the ASRA.
The relevant laws are found in the Public Resources Code and Title 14 of the California
Code of Regulations. The Public Resources Code allows for the taking of mineral
specimens for recreational purposes upon receiving prior approval from the director.
(Pub. Res. Code, § 5001.65.) Commercial exploitation of resources in units of the State
Park System is prohibited, however. (Ibid.)
Title 14, Section 4301 et seq. addresses mineral resource collection on State Park
lands. Section 4301 defines "rockhounding," as being "the recreational gathering of
stones and minerals found occurring naturally on the undisturbed surface of the land,
including panning for gold in the natural water-washed gravel of streams." Section 4611
(e) states: "Tools, except goldpans to be used in gold panning, may not be used in
rockhounding within a unit. 'Hands and pans' only." Section 4611 (i) more specifically
addresses panning for gold. It states, "Panning for gold is considered to be
'rockhounding' as the term is applied in the Department. The goldpan is the only
exception permitted to the exclusion of tools from rockhounding in a unit as provided in
subsection (e)." (14 CCR § 4611 (i), emphasis added.)
These regulations clearly establish that while gold panning in stream gravels is
generally permitted, no tools other than hands and gold pans may be used on State
Park property to pan for gold.
ASRA Interim Resource Management Plan
The ASRA Interim Resource Management Plan ("IRMP") is another governing
document. The purpose of the IRMP to "guide the use, development, and management
of the ASRA the period while the Federal government determines whether to construct
the Auburn Dam and Reservoir]." (IRMP p. iii.) The IRMP further acknowledges that
Correspondence ro: Gold Panning Tools in ASRA 8 25 16
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August 25, 2016
Page Four
PL 89-161, the authorization for the Auburn Dam and Reservoir Project, sets the broad
parameters for management guidelines in the area. (IRMP p. iv.)
The IRMP does restrict suction dredging. While it acknowledges the need to study the
environmental impacts of dredging, it also limits the types and nature of dredging that is
allowed. (IRMP pp. 127-130.) The IRMP acknowledges that "[Recreational mineral
collection] will be subject to, and must comply with, Federal laws and regulations
governing the protection and preservation of cultural resources, specifically the
Antiquities Act of 1906, the National Historic Preservation Act of 1966 (as amended),
and the Archeological Resource Protection Act of 1979." (IRMP, p. 126.) "The Auburn
SRA lands have been withdrawn from mineral entry; therefore, commercial mining
cannot be permitted. Recreational mineral collection, which is mineral collection for the
fun gained and to experience the work required in the Gold Rush days, is permitted."
(Ibid.)
The IRMP mainly establishes restrictions on the use of suction dredging and motorized
sluicing in the ASRA. Those practices have since been severely restricted by California
Fish and Game Code Sections 5653 et seq. The Fish and Game Code laws apply
because they establish a stricter standard than Federal law and pursuant to the MPA,
stricter State resource protection laws govern as long as they do not conflict with
Federal law.5 Section 5653.1 does note that it "does not prohibit or restrict non-
motorized recreational mining activities, including panning for gold." Thus, while the
Fish and Game Code does clearly restrict motorized suction dredging and sluices, it
does not appear to impact non-motorized mining activities. There is nothing in the
IRMP, however, that provides blanket permission for the use of for any and all types of
gold panning tools such as shovels, sluices, etc., for gold panning purposes. More
importantly, the IRMP contemplates that concerns over environmental and historic
resources damage may be the basis for restricting gold panning activities on ASRA
lands. As such, Section 4611 regulations on gold panning tools govern in the ASRA.
Federal Mining Claims Act
Those who have perfected a claim under the Federal Mining Act of 1872 do have
certain rights to mine for minerals on Federal lands. However, the United States
Supreme Court has held that Federal mining laws and environmental regulations do not
preempt reasonable State environmental laws that restrict mining activities on Federal
land. (California Coastal Comm'n v. Granite Rock Co. (1987) 480 U.S. 572.) Thus,
even if there are mining claims on the ASRA Federal lands, CSP may still enforce its
environmental regulations on those lands to the extent that they do not impose an
outright ban on mineral mining.
5 The IRMP acknowledges that Fish and Game wardens administer dredging permits for miners and its
wardens patrol the ASRA to make sure that miners and hunters comply with regulations and have valid
permits. (IRMP p. 30.)
Correspondence re: Gold Panning Tools in ASRA 8 25 16
Steven Lehr, et al.
August 25, 2016
Page Five
Conclusion
In the absence of a Federal law that clearly overrides State regulations, ASRA must
enforce State regulations that ban the use of tools for recreational mineral collection,
except for the use of "hands and pans" for gold panning on CSP lands. I understand
that this has been a confusing issue, particularly in light of the various jurisdictions and
governing documents. I hope to work cooperatively with the public primarily through
educational means in abiding by the State law, while also fostering mineral collection
recreation activities to the extent feasible.
Thank you for bringing my attention to this matter. I hope this correspondence resolves
any confusion over the applicable policies pertaining to gold panning on ASRA. If you
have further questions or concerns regarding this matter, feel free to contact me at
(916) 988-0205 or Auburn Sector Superintendent Mike Schneider at (530) 823-4173.
Sincerely,
Jason De Wall
District Superintendent
