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Legislative and Regulatory Update - October 2013 (Vol. 83, No. 2)
Legislative and Regulatory Update
by Scott Harn
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• Judge refuses to grant preliminary injunction to end suction gold dredging moratorium in California
On August 28, 2013, the second day of arguments in this case, Judge Gilbert G. Ochoa denied a motion for a preliminary injunction filed on behalf of California suction gold dredge miners who have been prohibited from practicing their trade in California waterways since 2009.

Thousands of ICMJ’s Prospecting and Mining Journal readers were anxiously waiting to get their equipment back in the water and recover the gold that will remain at the bottom of those waterways for now.

Judge Ochoa found that the miners “did not suffer irreparable harm,” said Jerry Hobbs, President of Public Lands for the People (PLP). Hobbs said he was “dumbfounded” by the judge’s decision.

The miners were represented by attorneys David Young and James Buchal, who argued, among other things, that many suction dredge miners were suffering irreparable harm due to the lost income generated from suction gold dredging. About 75 miners showed up for the first hearing on August 27, and another 45 for the second hearing on August 28, at Rancho Cucamonga Superior Court in southern California.

Attorneys for the State Department of Fish & Wildlife countered that 80% of suction dredgers in California stated they were “recreational” miners when surveyed during the latest Supplemental Environmental Impact Report.
“No matter how much we have driven home to the public that they are not considered recreational, (some) still maintain that they are,” said Hobbs. “But you know for a fact that as soon as they got on to a rich pocket of gold, they would not be calling themselves ‘recreational.’”

“If you call yourself ‘recreational,’ you lose those rights granted by the Mining Law,” stated Scott Harn, Editor of ICMJ’s Prospecting and Mining Journal, “and Judge Ochoa pointed that out today. If you establish a mining claim, and you are a ‘miner,’ you are afforded certain rights that were granted by Congress. There are no rights granted by Congress to those who use public lands for recreation.”

In his decision, the judge stated that since a large majority of the miners are “recreational” and they have already been out of the water for three years, they could continue to wait until the trial takes place, which he scheduled for May 2014.

Harn stated, “We all know that suction dredging is the only economically feasible method—and the most environmentally-friendly method—to recover gold in our waterways. We also know that there are a large number of miners who relied on suction gold dredging for their income. Even if we accept the 80% figure spouted by Fish & Wildlife attorneys, that means that over 700 permittees in 2008 were not ‘recreational’ miners. These miners have certain granted rights that continue to be trampled upon by elected representatives in California and by various judges. Even though the judge ruled against issuing a preliminary injunction, I look forward to seeing this farce being remedied at trial.”

In the meantime, the miners will need to acquire the complete record for all the consolidated court cases. Fish & Wildlife stated the record amounts to several hundred thousand pages and is easily “the largest record in the history” of their agency. The cost to the plaintiffs (the miners) could be $100,000 or more.

“This is far more money than we could normally acquire, so if we want to stay in this case we have got to rely on the miners and the clubs to help us raise the necessary funds,” said Hobbs. “By staying in this lawsuit and fighting, we do not know the outcome yet, but we do know the outcome if we do not fight back,” he added.


• Proposed listing of Yellow-legged frog and Yosemite Toad in northern California
Update is courtesy of James Hutchings after he attended a public meeting on the issue in Auburn, California.

I suppose the best way to summarize the flavor of this meeting is to mention the interaction of a member of the community, her perceptions and her support for the action.

The woman stated she had just heard about the meeting that morning, did some quick research, and came to voice her opinion supporting the inclusion of these creatures and their habitat on the list. She could not understand why anybody could be opposed to something so innocent. From her research, she determined the frog was in trouble, and the proposal “merely” put the frog and its habitat on a priority list for assistance from all government agencies. She determined that the action would not impact recreation, backpacking, hunting or other current activities in the identified habitat. She was bolstered by comments made by a US Fish & Wildlife representative in her opening statements. According to the Fish & Wildlife, the proposal does not restrict most existing activities in the habitat area.

Cyndi Burchard from the Mother Lode Goldhounds stated that lapidary and gold panning are activities that have been impacted by such habitat inclusions. Several of us spent some time with the speaker mentioned above to help her understand why these decisions actually do impact lapidary, mining, logging and grazing.

The Cattlemen’s Association, logging associations, local ranchers, and rural community residents adjacent to public lands all agreed the habitat declaration does not directly affect most activities. However, it was clear from example after example that once this habitat declaration is made, other entities and agencies use and misuse this classification to regulate, restrict, deny, legislate and sue to stop activities they do not find acceptable. We have seen this time and time again.

Representative Tom McClintock’s staff included information relative to the recent Rim Fire within the Yosemite Park. Over 140 special protected habitats evolved into complete restrictions on logging and roads and prevented firefighters from entering the area by any method other than on foot to fight the fire and create containment lines. The 140 special protected habitats within the Yosemite park boundaries are now charcoal—the habitat, intended to be protected, was destroyed by rules and restrictions intended to protect various species.

Foresters indicated that much of our forests, including many areas of the recent American Complex fire (20,000 acres), have densities of over 140 trees per acre when a properly managed forest (or a forest naturally managed by nature) contains around 70 to 80 trees per acre. Fire suppression, anti-logging efforts by environmental extremists, road and access closures, and existing species habitat all contributed to a dangerous forest condition. McClintock’s staff presented maps of fire damage at the Rim fire overlaid with species habitats and restrictions.

My position—supported by numerous other forest users—was that the frog does not appear to exist in my area (nor theirs). If the frogs were there at one time, the non-native fish —the number one documented cause of death—would eat them, their eggs and young.

By the way, another significant enemy of the frogs, according to the Fish & Wildlife, are the conifers (pine trees). The conifer spread out into the marshes and wetlands along the streams and turn them to dry lands. The loggers took notice!

It appears that these frogs and toads are also victims of an insidious fungus that is decimating frog populations all over the world called the “chytrid” fungus.

Most of the speakers, including me, felt that this determination for this species was not necessary. We expressed that identification of the frog itself as a protected species was sufficient. We, and the other stakeholders in the forest, felt that creating another special habitat would become a useful tool by those with an agenda. We would certainly see this “frog habitat” show up in California legislation and environmental lawsuits as restrictions and prohibitions resulting in the end of small-scale placer mining and other activities. We proposed that the frog should be recognized and protected, but that these creatures should not be included in this extreme designation based on the unclear nature of its decline.
 If you have a voice, and you are concerned, use it!
The Public Comment Period is extended and is open until November 18th 2013!

During open comment periods, comments may be submitted online at the Federal eRulemaking Portal at www.regulations.gov. The Docket Number for the proposed listing rule is FWS-R8-ES-2012-0100 and for the proposed critical habitat rule it is FWS-R8-ES-2012-0074. Comments can also be sent by US mail to:

Public Comments Processing
FWS-R8-ES-2012-0100
(or FWS-R8-ES-2012-0074)
Div. of Policy and Directives Mgt
US Fish and Wildlife Service
4401 N. Fairfax Dr, MS 2042-PDM
Arlington, VA 22203
 
Thanks go to Congressmen Doug LaMalfa and Tom McClintock and their staffs for taking an active interest in this matter and facilitating the public involvement.

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