SB 670 (California suction dredge mining ban)

[old gold miner]

General Mining Laws (30 USC § 22 et., seq)
Grant the following rights to valid unpatented mining claim owners.

“Lands open to purchase by citizens: 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 [States], so far as the same are applicable and not inconsistent with the laws of the United States“. 30 USC § 22.

"Under the mining laws a person has a statutory right, consistent with Departmental regulations, to go upon the open (unappropriated and unreserved) Federal lands for the purpose of mineral prospecting, exploration, development, extraction and other uses reasonably incident thereto." (See 30 U.S.C. § 21-54, 43 C.F.R. § 3809.3-3, 0-6).

The discovery of a valuable mineral deposit within its limits validates a mining claim located on public land in conformance with the statute and its locator acquires an exclusive possessory interest (valid existing private property rights) in the claim; a form of real property which can be sold, transferred, mortgaged, or inherited, without infringing the paramount title of the United States. 30 U.S.C. § 26; Cole v. Ralph, 252 U.S. 286, 295 (1920); Forbes v. Gracey, 94 U.S. 762, 767 (1877).

The claimant has the exclusive right to possession and enjoyment of all the surface included within the lines of the locations, but the United States retains title to the land. 30 U.S.C. § 26, 35; Union Oil Co. of California v. Smith, 249 U.S. 337, 349 (1919); Wilbur v. U.S. ex rel. Krushnic, 1930, 50 S.Ct. 103, 280 U.S. 306, 74 L.Ed. 445; California Coastal Comm'n v. Granite Rock Co., 480 U.S. 572, 575, 107 S.Ct. 1419, 1422, 94 L.Ed. 2d 577 (1987); Swanson v. Babbitt, 3 F.3d 1348, 1350 (9th Cir. 1993).

30 U.S.C. § 26 addresses the "locators' rights of possession and enjoyment" as follows: "The locators of all mining locations on the public domain so long as they comply with the laws of the United States, and with State 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."

There is no question that reasonable access to a valid mining claim cannot be denied. 36 C.F.R. § 228.12; see United States v. James and Marjorie Collard, 128 IBLA 266, 291 (1994).

16 U.S.C. § 481, Use of Waters: All waters within boundaries of national forests may be used for domestic, mining, milling, or irrigation purposes under the laws of the state wherein such national forests are situated or under the laws of the United States and the rules and regulations established thereunder.

Valid federal mining claims are "private property" Freese v. United States, 639 F.2d 754, 757, 226 Ct.Cl. 252 cert. denied, 454 U.S. 827, 102 S.Ct. 119, 70 L.Ed.2d 103 (1981); Oil Shale Corp. v. Morton, 370 F.Supp. 108, 124 (D.Colo. 1973).

This possessory interest entitles the claimant to "the right to extract all minerals from the claim without paying royalties to the United States." Swanson v. Babbitt, 3 F.3d 1348, 1350 (9th Cir. 1993).

A locator has the right of possession against all intruders and the right to protect his possession and to work the land for valuable minerals. Miller v. Chrisman, 140 Cal. 440, 447, 73 Pac. 1083, 74 Pac. 444, 98 Am. St. Rep. 63 (case affirmed 197 U.S. 313, 25 Sup. Ct. 468; Weed v. Snook, ubi supra; Merced Oil Mining Co. v. Patterson, 153 Cal. 624, 625, 96 Pac. 90; s. c., 162 Cal. 358, 361, 122 Pac. 950; McLemore v. Express Oil Co., 158 Cal. 559, 562, 112 Pac. 59, 139 Am. St. Rep. 147., Garthe v. Hart, 73 Cal. 541.

The term “vested mining right” includes both a right established by use, as well as a right established by permit. (See; TransOceanic Oil Corporation v. Santa Barbara (1948) 85 Cal.App.2d 776; Avco Community Developers, Inc. v. South Coast Regional Comm’n. (1976) 17 Cal.3d 785, 790

“A permit becomes a vested property right where the permittee has incurred substantial liabilities and performed substantial work in reliance on the permit“; Goat Hill Tavern v. City of Costa Mesa (1992) 6 Cal.App.4th 1519; Hansen Bros. Enterprises v. Board of Supervisors of Nevada County (1996) 12 Cal.4th 533 (“Hansen”).)

The holder of a claim supported by a discovery need not seek patent; his unpatented mining claim remains a fully recognized possessory right. 30 U.S.C. § 39; United States v. Locke, 471 U.S. 84, 86 (1985).

If a discovery of a "valuable mineral deposit" is made, the claim can be held indefinitely so long as the annual assessment work is performed, the necessary filings are made, fees are paid, and a valuable mineral deposit continues to exist. See Best v. Humboldt Placer Mining Co., 371 U.S. 334, 336, 83 S.Ct. 379, 382, 9 L.Ed. 2d 350 (1963).

Even though title to the fee estate remains in the United States, these unpatented mining claims are themselves property protected by the Fifth Amendment against uncompensated takings. See Best v. Humboldt Placer Mining Co., 371 U.S. 334 (1963); cf. Forbes v. Gracey, 94 U.S. 762, 766 (1876); U.S.C.A.Const. Amend. 5; North American Transportation & Trading Co. v. U.S., 1918, 53 Ct.Cl. 424, affirmed 40 S.Ct. 518, 253 U.S. 330; United States v. Locke, 471 U.S. 84, 107, 105 S.Ct. 1785, 1799, 85 L.Ed. 2d 64 (1985); Freese v. United States, 639 F.2d 754, 757, 226 Ct.Cl. 252, cert. denied, 454 U.S. 827, 102 S.Ct. 119, 70 L.Ed. 2d 103 (1981); Rybachek v. United States, 23 Cl.Ct. 222 (1991).

Such an interest may be asserted against the United States as well as against third parties (see Best v. Humboldt Placer Mining Co., 371 U.S. 334, 336 (1963); Gwillim v. Donnellan, 115 U.S. 45, 50 (1885)) and may not be taken from the claimant … without due compensation. See United States v. North American Transportation & Trading Co., 253 U.S. 330 (1920); cf. Best v. Humboldt Placer Mining Co.

"Uncompensated divestment" of a valid unpatented mining claim would violate the Constitution. Freese v. United States, 639 F.2d 754, 757, 226 Ct.Cl. 252, cert. denied, 454 U.S. 827, 102 S.Ct. 119, 70 L.Ed. 2d 103 (1981).

A valid location, though unpatented, is a grant in the nature of an estate in fee and if such an estate is taken by the United States, just compensation must be made. See U.S.C.A. Const. Amend. 5, North American Transportation & Trading Co. v. U.S., 1918, 53 Ct.Cl. 424, affirmed 40 S.Ct. 518, 253 U.S. 330.
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On September 9, 1850, Congress passed an Act for the Admission of California into the Union. 31 Cong. Ch. 50, September 9, 1850, 9 Stat. 452. In critical part, that Act states as follows:

Sec. 3. And be it further enacted, That the said State of California is admitted into the Union upon the express condition that the people of said State, through their legislature or otherwise, shall never interfere with the primary disposal of the public lands within its limits, and shall pass no law and do no act whereby the title of the United States to, and right to dispose of, the same shall be impaired or questioned.

As such, Congress clearly abrogated, and California forever expressly conceded all rights to control the disposition of how the federal government disposes of federal public domain lands within its boundaries.

Provisions of SB 670 prohibit all suction dredge gold mining statewide in California, for an indefinite period of time. As such, SB 670 suction dredging gold mining ban is an unlawful constraint on mining claim owners use of federal public domain in California. As it clearly conflicts with the federal mandate that states cannot pass law or regulation “inconsistent” with, or that “impairs” 30 USC § 22.

The application of the General Mining Law to national forests was specifically affirmed by Congress in the Organic Act, which makes the national forests “subject to entry under the existing mining law of the United States and the rules and regulations applying thereto.” 16 U.S.C. § 482; see Wilderness Soc’y v. Dombeck,168 F.3d 367, 374 (9th Cir. 1999).

The Organic Act also allows the Secretary of Agriculture to make rules regulating the “occupancy and use [of National Forest land]n” 16 U.S.C. § 551.

Nothing in the Organic Act, however, “shall be construed as prohibiting . . . any person from entering upon such national forests for all proper and lawful purposes, including that of prospecting, locating, and developing the mineral resources thereof.” 16 U.S.C. § 478.

While the Secretary of Agriculture may reasonably regulate mining on National Forest land to protect surface resources, the authority to manage the mineral estate on all federal land is vested in the Secretary of the Interior. See 16 U.S.C. § 472 (transferring power from Secretary of the Interior to make laws regarding National Forest reserves, but “excepting such laws as affect” the prospecting and entering of such lands); see also Best v. Humboldt Placer Mining Co., 371 U.S. 334, 336 (1963)

Additionally, while the Mining of Act of 1872 originally expressed no legislative intent, Congress declared its intent to retain and manage the surface resources of located unpatented mining claims when it passed the Multiple Use Mining Act. California Coastal, 480 U.S. at 582.

The Bureau of Land Management (BLM) is responsible for managing the mineral resources on federal lands and the USFS (under the Secretary of Agriculture) is responsible for the management of surface impacts of mining on federal lands. Id at 585. Both FLPMA and the National Forest Management Act pre-empt the "extension of state land plans onto unpatented mining claims in national forest lands." Id

The Federal Land Policy and Management Act of 1976 (43 U.S.C. 1701-1782), requires the Secretary of the United States Department of the Interior to develop and implement land use plans for the various public lands. This Act specifically gives the Secretary of the Interior the discretion to preempt state and local land use plans if they are inconsistent with the federal development scheme. 43 U.S.C. 1712(c)(9).

The policies contained in FLPMA explicitly state that the management, protection, disposition and disposal/withdrawal of federal lands is vested in the federal government and not with the state. In short, a state cannot dictate to the federal government, or a federal agency what specific land uses are or are not allowed on federal lands.

The SB 670 suction dredge gold mining prohibition on valid mining claims, on federal public domain lands, also clearly conflict with other major federal mandates. Including the Federal Land Policy and Management Act of 1976 (FLPMA), 43 U.S.C. §1701 et seq.

FLPMA 43 U. S. C. § 1702. Definitions (e) The term “public lands” means any land and interest in land owned by the United States within the several States … without regard to how the United States acquired ownership.

(j) The term “withdrawal” means withholding an area of Federal land from settlement, sale, location, or entry, under some or all of the general land laws, for the purpose of limiting activities under those laws in order to maintain other public values in the area or reserving the area for a particular public purpose or program;

FLPMA 43 U.S.C. §1712 (e) (3) Withdrawals made pursuant to section 204 of this Act [43 USCS Sec. 1714] may be used in carrying out management decisions, but public lands shall be removed from or restored to the operation of the Mining Law of 1872, . . . only by withdrawal action pursuant to section 204 [43 USCS Sec. 1714] or other action pursuant to applicable law:

FLPMA 43 U.S.C. § 1732(b)… “no provision of this section or any other section of this Act shall in any way amend the Mining Law of 1872 or impair the rights of any locators or claims under that Act, including, but not limited to, rights of ingress and egress“. FLPMA § 302(b).

Less than 5,000 acres of federal public domain lands may only be withdrawn from entry, occupation and use under The General Mining Laws by the Secretary of Interior. More than 5,000 acres can only be withdrawn with the explicit consent of Congress pursuit to provisions of the Federal Land Policy and Management Act of 1976 (FLPMA), 43 U.S.C. §1701 et seq.

Provisions of SB 670 not only “limit” mining activity on federal public domain lands, they expressly prohibit such activities. As such, SB 670 mining prohibitions constitute a “withdrawal” pursuant to FLMPA. The point being, only the Secretary of the Interior, or Congress may make such withdrawals. Clearly, no state has any authority make federal public domain land withdrawals.

Public land under the ownership of the United States. “The power over the disposition of such land and the minerals contained therein is in Congress and not in the states“. (McLemore v. Express Oil Co. (1910) 158 Cal. 559, 562; Moore v. Smaw (1861) 17 Cal. 199, 218-219.)

A regulation (a de facto closure) which removes [public domain lands] from its prior use, or from mineral entry, is a withdrawal within the meaning of the Federal Land Planning and Management Act of 1976, (FLPMA). It “operates to remove lands from public use” and, as such, constitutes a “withdrawal” subject to FLPMA. (Mountain States Legal Foundation v. Andrus, (D.C. (Wyo.) 1980) 499 F.Supp. 383; FLPMA §204(c); 43 USCA §1714(c); FLPMA §103(j); 43 USCA §1702(j).)

State jurisdiction over federal land "does not extend to any matter that is not consistent with full power in the United States to protect its lands, to control their use and to prescribe in what manner others may acquire rights in them." Utah Power, 243 U.S. at 404.

If Congress so chooses, federal legislation, together with the policies and objectives encompassed therein, necessarily override and preempt conflicting state laws, policies, and objectives under the Constitution's Supremacy Clause, U.S. Const. art. VI, cl. 2. See Kleppe, 426 U.S. at 543 ("'A different rule would place the public domain of the United States completely at the mercy of [the State]'" (quoting Camfield v. United States, 167 U.S. 518, 526 (1897)).

When a State through its entities or officials voluntarily elects to participate in a federal program knowing that a consequence of participation is a waiver of immunity from suit, the State’s waiver of immunity is just as much an “intentional
relinquishment or abandonment of a known right or privilege” (College Sav., 527 U.S. at 682) as a waiver that is expressly embodied in state law.

Congress has authority under the Constitution to condition state access to a federal program or benefit on a waiver of the State’s immunity from suit, federal law determines the consequences of the State’s voluntary actions, and any state effort to negate that condition through reliance on state law would be preempted by the Supremacy Clause. Lawrence County v. Lead-Deadwood Sch. Dist. No. 40-1, 469 U.S. 256, 257-258 (1985)

A State may not simultaneously accept the benefits of a federal program and fail to comply with the conditions upon which those benefits are extended. Townsend v. Swank, 404 U.S. 282, 286 (1971) (state rule that conflicts with the conditions on which federal funds are offered is “invalid under the Supremacy Clause”).

It is absolutely established that a valid unpatented placer mining claim is in fact a Statutory Federal Grant of “private property” derived from 30 U.S.C. § 21-54. All unpatented placer mining claims situated in California are on federally owned lands, under jurisdiction of the USFS, or BLM. Otherwise none would exist, as federal land is the only place an unpatented mining claim can be initiated, and held.

As long as the Federal government retains title, the federal interest in providing free access to its own land in order to promote mining is sufficient to preempt any state law that fundamentally bans such use. Thus under standard preemption analysis any state legislation, or regulation that conflicts with this overriding federal , must fail.

Under the Supremacy Clause, any state law that conflicts with a federal law is preempted. Gibbons v. Ogden, 22 U.S. 1 (1824). Any state legislation which frustrates the full effectiveness of federal law is rendered invalid by the Supremacy Clause" regardless of the underlying purpose of its enactors, Perez v. Campbell, 402 U.S. 637, 651-52, 91 S.Ct. 1704, 29 L.Ed.2d 233 (1971).

A conflict exists if a party cannot comply with both state law and federal law. In addition, even in the absence of a direct conflict between state and federal law, a conflict exists if the state law is an obstacle to the accomplishment and execution of the full purposes and objectives of Congress. Crosby v. Nat’l Foreign Trade Council, 530 U.S. 363, 372-73 (2000).

In determining whether a state law is a sufficient obstacle, the courts examine the federal statute as a whole and identify its purpose and intended effects and then determine the impact of the challenged law on congressional intent. State law can be pre-empted in either of two general ways. If Congress evidences an intent to occupy a given field, any state law falling within that field is pre-empted.

If Congress has not entirely displaced state regulation over the matter in question, state law is still pre-empted to the extent it actually conflicts with federal law, that is, when it is impossible to comply with both state and federal law, or where the state law stands as an obstacle to the accomplishment of the full purposes and objectives of Congress. California Coastal Comm’n v. Granite Rock Co., 480 U.S. 572, 581 (1987)

State regulations are permissible on federal lands only to the extent they are not inconsistent with or in conflict with the United States. Brubaker v. Board of County Comm 'rs, El Paso County, 652 P.2d 1050, 1058 (Colo. 1982). However, not all state regulation of mining claims is permissible, and state laws prohibiting activities authorized under federal mining laws are not permissible. South Dakota Mining Ass 'n v. Lawrence County, 977 F.Supp 1396, 1403 (D.S.D. 1997).

Small scale suction dredging is the primary exploration, and production method for recovering placer gold on valid placer mining claims over federal public domain lands, open to mineral entry under the General Mining Laws (30 USC § 22 et., seq). The vast majority of all small scale suction dredge gold mining in California takes place on unpatented, or patented mining claims situated on or within federal public domain lands.

With only rare exception, small scale suction dredging is the only viable environmentally friendly means that ordinary men have to economically benefit from right to mine (private property rights) granted to them under 30 USC § 22. Indisputably, 30 USC § 22 is a federal land [mining claim] disposal law, including a grant to the owner, the right to mine applicable minerals therein.
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California SB 670, effective August 6, 2009
SECTION 1.
Section 5653.1 is added to the Fish and Game Code, to read:

5653.1. (a) The issuance of permits to operate vacuum or suction dredge equipment is a project pursuant to the California Environmental Quality Act (Division 13 (commencing with Section 21000) of the Public Resources Code) and permits may only be issued, and vacuum or suction dredge mining may only occur as authorized by any existing permit, if the department has caused to be prepared, and certified the completion of, an environmental impact report for the project pursuant to the court order and consent judgment entered in the case of Karuk Tribe of California et al. v. California Department of Fish and Game et al., Alameda County Superior Court Case No. RG 05211597.

(b) Notwithstanding Section 5653, the use of any vacuum or suction dredge equipment in any river, stream, or lake of this state is prohibited until the director certifies to the Secretary of State that all of the following have occurred:

(1) The department has completed the environmental review of its existing suction dredge mining regulations, as ordered by the court in the case of Karuk Tribe of California et al. v. California Department of Fish and Game et al., Alameda County Superior Court Case No. RG 05211597.

(2) The department has transmitted for filing with the Secretary of State pursuant to Section 11343 of the Government Code, a certified copy of new regulations adopted, as necessary, pursuant to Chapter 3.5 (commencing with Section 11340) of Part 1 of Division 3 of Title 2 of the Government Code.

(3) The new regulations described in paragraph (2) are operative.

(c) The Legislature finds and declares that this section, as added during the 2009-10 Regular Session, applies solely to vacuum and suction dredging activities conducted for instream mining purposes.

This section does not expand or provide new authority for the department to close or regulate suction dredging conducted for regular maintenance of energy or water supply management infrastructure, flood control, or navigational purposes governed by other state or federal law.

(d) This section does not prohibit or restrict nonmotorized recreational mining activities, including panning for gold.
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1. Plainly, in granting California statehood, Congress clearly abrogated, and California forever expressly conceded all rights to control the disposition of how the federal government manages, or disposes of federal public domain lands within its boundaries.

2. Unquestionably, the Federal General Mining Laws (30 USC § 22 et., seq) open all applicable federal public domain lands to mineral entry, occupation, mining use as a statutory right expressly granted to U.S. citizens.

3. indisputably, the Federal General Mining Laws (30 USC § 22 ) mandate States regulatory authority is expressly limited to regulations “not inconsistent with the laws of the United States“.

4. Irrefutably, by multiple express Acts of Congress the authority to manage the mineral estate and/or mining operations on all federal land is vested in the Secretary of the Interior (BLM) and/or in National Forests by the Secretary of Agriculture (USFS).

5. Incontrovertibly, the Federal Land Policy and Management Act, and the National Forest Management Act pre-empt the "extension of state land plans onto unpatented mining claims ."

6. Unmistakably, the Federal Land Policy and Management Act expressly precludes any State “withdrawal” of Federal public domain lands from application of the General Mining Law. As States have no authority to preempt Federal law.

7. Certainly, valid unpatented mining claims are ‘private property”, although such use is limited to mining, and uses reasonably incident thereto.

8. Clearly, all valid unpatented mining claims, and their viable economic use are fully protected from uncompensated “taking” by provision of the Fifth Amendment of the U.S. Constitution, as well as Article 1, § 19 of California’s Constitution.
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Given the insurmountable magnitude of express Federal statutory protections granted by Federal law, regarding valid unpatented mining claims. As well as voluminous Supreme Court case law verifying those same protections, and fully validating associated mining rights. Without doubt, SB 670 will be struck down in Federal Court, as being in direct conflict with, and preempted by multiple provisions of overriding Federal law.
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Furthermore, SB 670 legislation contains no “savings” or “severability” clause. As such, if any part of it is struck down, what remains is also. Meaning, all of SB 670 is void, as if it never existed. As a consequence of that, suction dredging in California would no longer be a California Environmental Quality Act (CEQA) “project”.

[CalGoldDredger]

Nice Job!

[old gold miner]

Nice Job!

The “real” hero in all this is JERRY HOBBS & the PLP organization.
For years, like a dedicated “old soldier” Jerry has fought battle after battle to protect mining & public access rights.

Getting consensus from miners is about like “herding cats”.
So, Jerry’s battles have been up-hill from the get-go.

PLP lead by Jerry sought out & found enough donations to fund the PLP v. SB 670 lawsuit.
Which is a tough rocky row to hoe. As, times are hard & funding is scarce.

Many thanks also to ALL those who helped get that funding together.
As well as many thanks to ALL those who donated to defend the cause.

I’m just a “new kid on the block” & hope to be back out there “mining” ASAP

[CalGoldDredger]

OGM, got that right!

Jerry & The PLP

It is mighty hard to get any two miners to agree most of the time.
Arguing opinions is like second nature for miners.

Like a bunch of old ladies!

I am having fun with these smileys!

John

[killerkernrich]

We can't quit sending in donation's IT NOT OVER YET

[old gold miner]

Suction dredge gold mining, on valid mining claims is a perfectly legitimate LAND USE.

Nonconforming (grandfathered) uses of land.
These are land uses that would not be permitted under current regulations, but which were established before the regulations went into effect.
Once established, they "run with the land" - that is, they automatically continue in force when the land is sold.

Meaning, such nonconforming land uses can continue to operate under the rules/regulations that existed prior to the regulatory change.

Nonconforming rights are "vested property rights".

There is bedrock solid case law on the subject in California & Nation wide (including mining issues).

Federal law that governs all public domain lands adhere to the long standing rule of law protecting “Vested - Valid Existing Rights”. As an example, both pre & post Federal Land Policy Management Act (FLPMA) public domain land withdrawals, where such lands are withdrawn from mineral entry under the General Mining Laws expressly acknowledge, and grant clear Constitutional protection to Vested Valid Existing Rights, where they exist, prior to any land withdrawal date.

It stands that, all patented mining claims, as well as unpatented mining claims that pre-existed ANY suction dredge regulation have those vested property rights.

For that matter, any valid unpatented mining claim existing in California LAST year (pre SB 670), would be exempt (grandfathered), from any new regulation.

FLPMA mandates federal public domain may ONLY be withdrawn from mineral entry, and use(under the General Mining Laws) by express consent of Congress, or in in certain instances, by the Secretary of Interior. The current SB 670 mining prohibition on all lands state wide constitutes a FLPMA “withdrawal” only Congress may make.

No State has legislative authority, or any power whatsoever to ignore, override, or abrogate Acts of Congress.