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Mining correction and information from a KBC reader:

In the latest mining article you posted there is some incorrect information.

"However, Craig Tucker, spokesman for the Karuk Tribe, points out that miners do not have an “unfettered right” under the General Mining Act to engage in activities that are harmful to protected native species, in derogation of state and federal environmental laws. Moreover, the State of California acquired sovereign ownership of the beds of navigable rivers upon its admission to the United States in 1850.

The State holds these lands for the benefit of all the people of California for statewide Public Trust purposes, including fisheries and habitat preservation. No one has an unalterable right to suck up streambeds in search of gold if such activities cause harm to public trust resources,” said Tucker."


100. Navigable waters and all streams of sufficient capacity to transport the products of the country are public ways for the purposes of navigation and of such transportation. However, the floodwaters of any navigable river, stream, slough, or other watercourse while temporarily flowing above the normal high-water mark over public or private lands outside any established banks of such river, stream, slough, or other watercourse are not navigable waters and nothing in this section shall be construed as permitting trespass on any such lands. For the purposes of this section, "floodwaters" refers to that elevation of water which occurs at extraordinary times of flood and does not mean the water elevation of ordinary annual or recurring high waters resulting from normal runoff.
101. The following streams and waters are declared navigable and are public ways: ...
103. Klamath River, from its mouth in Del Norte County to its confluence with the Shasta River in the county of Siskiyou; but this shall not abrogate or infringe upon mining rights or the rights of locating or operating mining claims on the Klamath River, existing on August 21, 1933, otherwise than by being made subject to the public rights of way herein declared. " [Note no other river in Siskiyou County is named.]
Donnelly v. U.S., 228 U.S. 243 (1913,) involved a homicide that took place below high-water mark in the bed of the Klamath River in northern California, riparian to the Hoopa Reservation. Jurisdictional issues centered around ownership of the land. Justice Pitney stated:

    "Upon the question of government ownership, it is a matter of history that the entire territory in question was a part of the public domain that was transferred by Mexico to the United States in the year 1848 by the treaty of Guadalupe Hidalgo. 9 Stat. at L. 922; United States v. Kagama, 118 U.S. 375, 381, 30 S. L. ed. 228, 230, 6 Sup. Ct. Rep. 1109.

    "By act of September 9, 1850 (9 Stat. at L. 452, chap. 50), California was admitted into the Union 'on an equal footing with the original states in all respects whatever.' By 3 of the same act it was provided '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 otherstate, shall never interfere with the primary mary 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; . . . and that all the navigable waters within the said state shall be common highways, and forever free, as well to the inhabitants of said state as to the citizens of the United States, without any tax, impost, or duty therefor.'

    "It is insisted that the Klamath is a navigable river; and there is evidence in the record tending to show that the stream is navigable in fact, at certain seasons, from Requa (near its mouth) up to and above the locus in quo. But, in the view we take of the present case, the question of its navigability, in fact or in law, is immaterial except as it bears upon the title of the United States to the bed of the stream. The present question is whether that bed was a part of an Indian reservation, and that depends upon the question of ownership. The jurisdiction to punish the plaintiff in error for the murder of an Indian upon the reservation depends upon other considerations, as will appear hereafter.

    "In passing upon the effect of the act admitting Alabama into the Union, this court held, in Pollard v. Hagan, 3 How. 212, 11 L. ed. 565, that the state had the same rights, sovereignty, and jurisdiction over the navigable waters as the original states, and could exercise all the powers of government which belong to and may be exercised by them, excepting with respect to control over public lands owned by the United States; and that the title of the navigable waters, and the soil beneath them, was in the state, and subject to its sovereignty and jurisdiction. In The Genesee Chief v. Fitzhugh, 12 How. 443, 13 L. ed. 1058, it was settled that for purposes of admiralty jurisdiction the tidal test, prevailing in England for determining what is navigable water, is not applicable to this country. In Barney v. Keokuk, 94 U.S. 324, 338, 24 S. L. ed. 224, 228, it was held that it is for the states to establish for themselves such rules of property as they may deem expedient with respect to the navigable waters within their borders and the riparian lands adjacent thereto. The court, speaking through Mr. Justice Bradley, said (94 U.S. 338): 'The confusion of navigable with tide water, found in the monuments of the common law, long prevailed in this country, notwithstanding the broad differences existing between the extent and topography of the British island and that of the American continent. It had the influence for two generations of excluding the admiralty jurisdiction from our great rivers and inland seas; and under the like influence it laid the foundation in many states of doctrines with regard to the ownership of the soil in navigable waters above tide water at variance with sound principles of public policy. Whether, as rules of property, it would now be safe to change these doctrines where they have been applied, as before remarked, is for the several states themselves to determine. If they choose to resign to the riparian proprietor rights which properly belong to them in their sovereign capacity, it is not for others to raise objections. In our view of the subject, the correct principles were laid down in Martin v. Waddell, 16 Pet. 367, 10 L. ed. 997; Pollard v. Hagan, 3 How. 212, 11 L. ed. 565; and Goodtitle ex dem. Pollard v. Kibbe, 9 How. 471, 13 L. ed. 220. These cases related to tide water, it is true, but they enunciate principles which are equally applicable to all navigable waters. And since this court, in the case of The Genesee Chief v. Fitzhugh, 12 How. 443, 13 L. ed. 1058, has declared that the Great Lakes and other navigable waters of the country, above as well as below the flow of the tide, are, in the strictest sense, entitled to the denomination of navigable waters, and amenable to the admiralty jurisdiction, there seems to be no sound reason for adhering to the old rule as to the proprietorship of the beds and shores of such waters. It properly belongs to the states by their inherent sovereignty, and the United States has wisely abstained from extending (if it could extend) its survey and grants beyond the limits of high water. The cases in which this court has seemed to hold a contrary view depended, as most cases must depend, on the local laws of the states in which the lands were situated.'

    "The doctrine thus enunciated has since been adhered to. Packer v. Bird, 137 U.S. 661, 669, 34 S. L. ed. 819, 820, 11 Sup. Ct. Rep. 210; Hardin v. Jordan, 140 U.S. 371, 382, 35 S. L. ed. 428, 433, 11 Sup. Ct. Rep. 808, 838; Shively v. Bowlby, 152 U.S. 1. 40, 58, 38 L. ed. 331, 346, 352, 14 Sup. Ct. Rep. 548; St. Anthony Falls Water Power Co. v. St. Paul Water Comrs. 168 U.S. 349, 358, 42 S. L. ed. 497, 501, 18 Sup. Ct. Rep. 157; Scott v. Lattig, 227 U.S. 229, 243, 57 S. L. ed. -, 33 Sup. Ct. Rep. 242.

    "The question of the navigability in fact of nontidal streams is sometimes a doubtful one. It has been held in effect that what are navigable waters of the United States, within the meaning of the act of Congress, in contradistinction to the navigable waters of the states, depends upon whether the stream in its ordinary condition affords a channel for useful commerce. The Montello, 20 Wall. 430, 22 L. ed. 391; Leovy v. United States, 177 U.S. 621, 632, 44 S. L. ed. 914, 919, 20 Sup. Ct. Rep. 797; United States v. Rio Grande Dam & Irrig. Co. 174 U.S. 690, 698, 43 S. L. ed. 1136, 1139, 19 Sup. Ct. Rep. 770; South Carolina v. Georgia, 93 U.S. 4, 10, 23 S. L. ed. 782, 783; The Robert W. Parsons (Perry v. Haines) 191 U.S. 17, 28, 48 S. L. ed. 73, 78, 24 Sup. Ct. Rep. 8.

    "But it results from the principles already referred to that what shall be deemed a navigable water within the meaning of the local rules of property is for the determination of the several states. Thus, the state of California, if she sees fit, may confer upon the riparian owners the title to the bed of any navigable stream within her borders.

    "Now, a California Statute of April 23, 1880, chap. 122, declared the Klamath river to be navigable from its mouth to the town of Orleans Bar, which is above the locus in quo. But this was repealed by act of February 24, 1891, chap. 14; and by an act of March 11, 1891, chap. 92 (Political Code, 2349), an enumeration was made of all the navigable rivers of the state. This is held by the supreme court of that state to be exclusive, so that no other rivers are navigable under the laws of California. Cardwell v. Sacramento County, 79 Cal. 347, 349, 21 Pac. 763. The Klamath river is not among those thus enumerated, and it must therefore be treated as not navigable in law. And it will be observed that it was thus placed in the category of non-navigable streams prior to President Harrison's order of October 16, 1891, by which the Extension of the Hoopa Valley Reservation was established.

    "In the important case of Lux v. Haggin (1886) 69 Cal. 255, 335, 337, 10 Pac. 674, the supreme court of California, after pointing out that upon the admission of that state into the Union 'upon an equal footing' with the original thirteen states, she became seised of all the rights of sovereignty, jurisdiction, and eminent domain which those states possessed, and that under 3 of the act of admission (9 Stat. at L. 452, chap. 50) the lands of the United States not reserved or purchased for fortifications, etc., are held as are held the lands of private persons, with the exception that the state cannot interfere with the primary disposal of them nor tax them, and that the navigable waters are common highways, free to the inhabitants of the state and to citizens of the United States, -proceeded to declare that whether this act did or did not operate as an immediate transfer of the property in non-navigable rivers to the Federal government, the legislature of the state, on April 13, 1850, passed an act adopting the common law of England, so far as not repugnant to or inconsistent with the Constitution of the United States or the Constitution or laws of the state of California, as the rule of decision in all courts of the state, and that in view of the subsequent judicial history of the state this act must be held to have operated, at least from the admission of the state into the Union, as a transfer to all riparian proprietors, including the United States, of the property of the state, if any she had, in the non-navigable streams and the soil beneath them. The authority of this decision was recognized in Packer v. Bird, 137 U.S. 669, 34 L. ed. 820, 11 Sup. Ct. Rep. 210. We are not able to find that the doctrine declared in it has since been departed from by the courts of the state.

    "It thus appears, from the course of legislation and adjudication by the appropriate authorities of California, not only that the Klamath river has been placed in the category of non-navigable streams, but that the title of the United States to the bed of it where it runs through the public lands has been distinctly recognized. In short, by the acts of legislation mentioned, as construed by the highest court of the state,-(a) the act of 1850, adopting the common law, and thereby transferring to all riparian proprietors (or confirming in them) the ownership of the non-navigable streams and their beds, and (b) the acts of February 24 and of March 11, 1981, declaring in effect that the Klamath river is a nonnavigable stream,-California has vested in the United States, as riparian owner, the title to the bed of the Klamath, if in fact it be a navigable river. If in fact it be non-navigable, it is obvious that the same result flows from the mere adoption of the common law.

    "From this it results that whether the river be or be not navigable in fact, the river bed is to be deemed as included within the Extension of the Hoopa Valley Reservation."

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