CA MINING CLAIM OWNERS WATER RIGHTS

[old gold miner]

The Property Clause of the U.S. Constitution authorizes the federal government to posses, regulate and control its own property (U.S. Const. art. IV, § 3, cl 2.). Under the Property Clause, Congress has the right to reserve federal lands from the public domain for federal purposes, such as national forests, and also the right to reserve water therein to accomplish the purposes those reservations are dedicated to (Cappaert v. U.S., 426 U.S. 128, 138 ~ citing U.S. Const. art. IV, § 3, cl 2.).

Under the reserved rights doctrine, Congress not only has the power to reserve water for such reservations, but also exercises that power when it reserves lands from the public domain (Ariz. v. Cal., 373 U.S. 546 599-600 (1963) ~ citing Winters v. U.S., 207 564, 577 (1908). Thus, under the reserved rights doctrine the United States vests the right to use such water as needed for purposes said reservations are dedicated to, with a priority date set when such reservations are made ( id.; Ariz, 373 U.S. at 600).

Because most federal lands were reserved before the bulk of other water rights were acquired under State law, as such federal reserved water rights generally have priority over “appropriative” rights granted under State law. Unlike the “public interest” test that applies under California law, which requires a balancing of differing interests, the reserved rights doctrine does not provide for a balancing of interests. Rather the federal right must be fully served before other rights with lower priority under state law are, regardless of the relative importance, or value of those rights (U.S. v. N.M., 438 U.S. 696, 715(1978) ~ Winters, 207 U.S. at 576-77 ~ Ariz., 373 U.S. at 601).

California law recognizes water rights by ownership of riparian land, appropriation, or prescription, Cal. Water Code § 2501. The California Supreme Court ruled that the federal government, as owner of nearly half the land in the state, held riparian water rights on the lands it set aside for particular federal purposes [such as National Forests], (See: In re Water of Hallett Creek Stream Sys., 749 P.2d 324 (Cal. 1988), cert. denied sub nom. California v. United States, 488 U.S. 824 (1988).

“Except as otherwise provided, all valuable mineral deposits in lands belonging to the United States … shall be free and open to exploration and purchase, and the lands in which they are found to occupation and purchase, by citizens of the United States … under regulations prescribed by law, and according to the local customs or rules of miners in the several mining districts, so far as the same are applicable and not inconsistent with the laws of the United States.” 30 U.S.C § 22.

The national forests are to be open for entry "for all proper and lawful purposes, including that of prospecting, locating, and developing the mineral resources thereof." 16 U.S.C. § 478.

Locators’ rights of possession and enjoyment: The locators of all mining locations … situated on the public domain, their heirs and assigns … so long as they comply with the laws of the United States, and with State, territorial, and local regulations not in conflict with the laws of the United States governing their possessory title, shall have the exclusive right of possession and enjoyment of all the surface included within the lines of their locations…’.30 U.S.C. § 26.

Whenever, by priority of possession, rights to the use of water for mining … or other purposes [within national forests], have vested and accrued, and the same are recognized and acknowledged by the local customs, laws and decisions of courts, the possessors and owners of such vested rights shall be maintained and protected in the same…”.43 U.S.C. § 661.

‘It is hereby declared …. Riparian rights in a stream or water course attach to, but to no more than so much of the flow thereof as may be required or used consistently with this section, for the purposes for which such lands are, or may be made adaptable, in view of such reasonable and beneficial uses; provided, however, that nothing herein contained shall be construed as depriving any riparian owner of the reasonable use of water of the stream to which the owner's land is riparian under reasonable methods of diversion and use, or as depriving any appropriator of water to which the appropriator is lawfully entitled. This section shall be self-executing, and the Legislature may also enact laws in the furtherance of the policy in this section contained“. Cal., Con., art., 10 Water Sec., 2. (California Water Code sections 101 is identical).

A riparian right is “part and parcel” of riparian land, and the right to the flow is real property. Title Ins. & Trust Co. v. Miller & Lux (1920) 183 Cal. 71, 81;“Whether the water right is riparian, appropriative or prescriptive in nature, it is a property interest the courts will protect. When these property rights are “taken” for public use within the meaning Fifth and fourteenth Amendments to the United States constitution, or “taken or damaged” within the meaning of Article 1, Section 14 of the California Constitution, just compensation must be paid”. (See Alta Land & Water Co. v. Hancock, 85 Cal. 219, 24 P. 645 (1890); Collier v. Merced Irr. Dist., 213 Cal. 553, 2 P. 2d 790 (1931), ; Lux v. Haggin, 69 Cal. 255, 10 P. 674 (1886).

The SWRCB does not have the authority to determine the validity of “vested” water rights other than appropriative rights initiated after December 19, 1914 or later. Pre-1914 water rights are not under the jurisdiction of the SWRCB. No authorization, license, or permit is required from the SWRCB before exercising a riparian right, and the right is not lost through non-use. Nor, are riparian rights junior to appropriative rights regardless of date of first use. Unless adjudicated, a riparian right is not quantified, rather it extends to the amount of water which can be reasonably and beneficially used on the riparian parcel.

SWRCB has no statutory authority under the Porter-Cologne Water Quality Control Act to enforce compliance with the standards it sets. The principal enforcement mechanism available to the Board is its regulation of water rights to limit diversions which cause unreasonable degradation to water quality.

Valid unpatented mining claim owners are irrefutably entitled by multiple federal statutory laws, as well as State law to put riparian water to beneficial use, for mining, and other incidental purposes. These water rights accrue to the public domain lands on which unpatented mining claims are situated.

Riparian water use for small scale suction dredging, and high banking does not “divert” water outside the high water boundary of watercourses. Nor, does it add anything to the water used, that was not already there. This type small scale mining practice adds no “sediment”, waste”, “sewage“, “contamination”, “pollutant” , or “hazardous substance” to any watercourse.

In some cases, these types of small scale mining, such as suction dredging, or high banking cause mild fleeting temporary turbidly increases of narrow width, for a very short distance below such operations. However, a mild short lived temporary increase in “turbidly” for a short distance. Does not constitute an individual, or cumulative “nuisance” injurious to health, indecent or offensive to the senses, or an obstruction to the free use of property, so as to interfere with the comfortable enjoyment of others life or property.

[Hoser John]

Problem is there is no defination of mild turbidity in federal law BUT see CDFG codified definitions and viola your busted. I've seen on many ocassions folks getting ticketed and legalese interpertations will be mistaken for law and THEN THEY PAY THE FINE and in Calif after 2--your through at the courts dicretion--John

[old gold miner]

John, who's side are you on?
Federal mining law calls for no undue or unnecessary water quality degradation.
CWA is about the same.

http://www.icmj.com/UserFiles/file/rece ... -study.pdf

http://www.resourcescoalition.org/Truth ... edging.pdf

http://swrcb2.swrcb.ca.gov/water_issues ... strong.pdf

http://www.akmining.com/mine/excerpts.htm

http://huntingforgold.net/viewtopic.php?f=16&t=1188

http://amadorgov.org/Modules/ShowDocume ... entid=7508

http://www.epa.gov/region10/pdf/permits ... 1_2010.pdf

http://www.swrcb.ca.gov/water_issues/pr ... ambers.pdf

[CalGoldDredger]

OGM, Hoser is on his own side, I'm on my own side and the next miner his own side. That is just how it is.
Most miners I know are very independent minded individuals, if not the most, I believe that is why we like mining so much for the sake of being independent and free.
Every once in a while our sides cross paths, if just for a moment.

I know what the reply to this will be and yes your right. (our shortcoming)

Thanks for the great post, keep them coming.
It is nice to take inventory of what rights we have left.

[old gold miner]

So true, the fatal defect in that is if we don’t band together as a cohesive group, with one voice. To fight for our constitutionally protected private property mining & water rights.

Those special interest groups that do ban together, and speak with one voice. Even though they refute the sound facts, science, logic & all else that certainly proves small scale suction dredge gold mining has a negligible effect on the environment will prevail.

Sadly here we have a group of anti-mining activists who speak louder than we do, with letter writing campaigns, that get lots of publicity. When you have 3 million of them shouting at CDFG / SWRCB & only a few miners shouting also. CDFG /SWRCB listens to them because they are louder. Even though, what they are shouting is not backed by fact, science, logic, or practicality. No matter, they get listened to & we don’t.

That has to change. If it doesn’t change soon, we can go down to our mining claims, and watch fishermen, campers, boaters, rafters & everybody else utilize that place. While we are forbidden to, even though we own the mineral & water rights, along with the right to use that water, and mine valuable minerals. But, we won’t be able to……………because although unlawful………CDFG / SWRCB passed regulations prohibiting us to.

The purpose of this post is to show proof, mining claim owners in California OWN riparian water rights. We are faced with 2 agencies, 1 protects fish, the other protects water that are trying to take our rights. Well, that water is ours to use, the fish can share it, but not take it. Unless SWRCB / CDFG intends to pay us for our mining & water rights. Which, they don’t.

FINE, they can take it, our job as a GROUP is make then pay for it, if they do.

[russau]

the older i get, the less steam i have to fight!!! and when someone knocks my feet out from under me when im trying to do something positive, it really burns me up! sometimes i think,"whats to point, if people (small scale miners) keep throwing road blocks out in front of me or more importantly someone thats actually trying really hard to straighten things out, or atleast try! burnout comes to mind when this happens! now i see why Dave "Reddog" got burned out!

[CalGoldDredger]

Russ, I am just being truthful and honest. I am not trying to throw any monkey wrenchs in OGM's plans or "road blocks" by any means.
OGM is a smart guy and I respect his great work and contributions, if all us miners were like him we wouldn't be in this mess and having this conversation.
I wish he or anyone could come up with a quick and victorious fix but I just don't see that happening any time soon and that is my point.

The way I see it now....(my opinion)
If the State of California does't run out of money to fund the SEIR, which is entirely possible, then they will complete it.
With the SEIR in place they will instate the new regulations and we will be dredging once again, I think they said late spring 2011. EASY!

I think I can wait a year, I am a patient man. At this point why waist money and resources to overturn the ban just for a short period of dredging, unless there can be a win before this June.
I see some other fires that need to be tended to and should not be allowed to grow out of control behind our backs.

[old gold miner]

John,

Well, I hope CDFG doesn’t close the river or stream you are on permanently.
Or, make the season so short it isn’t worth setting up for.
Or, throw in restrictions of some sort, that are impossible to comply with.

I can’t speak for the rest of you, but my family is in it for the gold (money).
Irrational restrictions that make it impossible to suction dredge at a profit, to me is the same thing as a permanent ban.

With SWRCB stepping into the fray, we are facing a double edge sword.
Say, CDFG doesn’t actually change to much from the 94 regulations.
But, SWRCB sets “turbidity” standards so restrictive that that running a dredge or high banker about anywhere would exceed turbidity standards SWRCB sets.

There is a simple small lightweight inexpensive $50 test kit for turbidity. It’s called a “turbidity” tube.
Read about them below:

http://www.wildco.com/specs/24-8070.pdf

http://www.cee.mtu.edu/sustainable_engi ... e_Shaw.pdf

Say for instance, you can dredge. With very low turbidity standards, along comes USFS / BLM / CDFG and/or any environmental zealot / tribal member (think Craig Tucker & gang) & tests water downstream from your operation. Bingo - bango, how would you like getting a $3000 ticket every day?

Ponder that one for a few minutes.
Because it’s on the horizon, if SWRCB sets low threshold turbidity standards.
We all know “tests“ can be tilted any way the one giving it wants.
So, you get some tree hugger taking samples, you are up sh*t creek, I assure you.

Think you can just "wait this out" then go dredging like before. NOT SO & HERE IS WHY

There are a few semi-automatic road blocks in CDFG’s scedule in getting this done.
Suppose CDFG proposed regulation is just full of bizarre restrictions, or closures (most likely).
Naturally, those will be contested at the OAL/APA level.
That could stall the regulations for another year or 2, past 2011.

Say, those restrictions are by some legal means overturned in the AOL/APA process (highly probable).
So, its back to square one, Then ponder, CDFG has spent all the funds presently allocated for the SB 670 CEQA process.
CDFG cannot proceed, the legislature doesn’t provide new funds.
The end result being, the SB 670 dredging ban just stays in place, in limbo lacking funds to get completed.

So, this whole process is like walking through a mine field, loaded with improvised explosive devices that can kill it (one way, or another) every step, along the way.

The no BS bottom line is this.
A court action to make the State of California recognize small scale mining claim owners have vested private property rights, in riparian water, and the right to mine, under “reasonable” regulation. Then, if California “takes those rights, they have to PAY for them.

Lacking that, anti-mining groups will simply keep plugging away, at every opportunity (drought years, new ESA listings, etc) that arises to create new hurdles, road blocks, impediments that chisel away at our rights, until none are left.

This is an Alamo fight right now. We either prevail, or die. Simple as that.

Every small scale miner out there & every unpatented mining claim owner in the west, better FACE THAT FACT RIGHT NOW.
Standing around, not doing much of anything (complacency), not supporting, not contributing a few bucks, not making written comments, at every stage of this CEQA process. Guarantees, we fail.

I can see it now, a decade down the road, a bunch of old men, talking about how it used to be.
Instead of standing up NOW, making themselves heard, and preserving the proud heritage of small scale mining claim owners.

Ponder, if you all were standing in a house, ON FIRE.
To preserve yourself, you would react (or die).
Well folks, small scale mining is a house ...... ON FIRE now.

Times are tight, but everybody able ……..should give up the price of a pizza dinner, a case of beer, a night at the movies, a new fishing pole or whatever.
Donating that sum to PLP ASAP.
Because, if we don’t support a LAWSUIT to defend out rights RIGHT NOW.
There will not be any rights left to defend, very soon.

[russau]

John this in NO WAY is refered to you or anyone here!!! this was just a brain fart of a old man running out of steam!

[old gold miner]

You know what’s strange about this.

I have productive unpatented placer claims in other states, in particular Idaho, and Alaska.

I also own a couple patented claims.

I can change gears & mine on a large yardage scale, that has nothing to do with suction dredging.

The reality is, no suction dredging or high banking doesn’t effect me over the long haul.

So, why should I care.

Well, I care because the loony tunes chisel away at private property rights.

Sooner or later, it will effect my family.

I want my children, theirs, and every generation that follows me.

To be able to enjoy, what I worked for decades to acquire for them.

A place to go, far out in the forest.

Where they can camp, fish, and mine a little gold.

Where they can learn what nature is all about, and how to survive in it.

Not just survive, but glory in it all.

I’m not much of a religious man.

But, to me, the true “church” is out there in nature.

The sun rising over a mountain top.

The sound of a babbling stream, with pan sized trout galore..

Chipmunks scampering around.

Watching a hawk or eagle circle on a thermal updraft.

They joy in teaching the youngster how to pan, tie a hook, catch a trout, sight in a rifle.

Family around the campfire, a good dutch oven cooked supper being shared & old fashion laughter.

Telling the kids scary stories fireside, on a moon lit night, as the campfire dies out.

Up at the crack of dawn, the smell of coffee perking on the camp stove.

A hearty breakfast of bacon, eggs, hot cakes & fried potatoes.

Days, weeks, even months away from the hustle of life in town, is refreshing to your soul.

That is something, worth more than gold itself.

In the end, what do we have.

Memories of good times & our family around us.

My mining claims are the place to build those fond memories.

I will defend that, so long as I am alive.

My ashes will be scattered there to.

Because it’s where I want my soul to linger, before I go prospecting on the other side.