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Rural California: Battle over suction dredge mining headed for court
Written by Elizabeth Larson   Monday, 16 November 2009

The is a two-part article on the impacts of North Coast Sen. Patricia Wiggins' legislation to temporarily halt a mining practice in California.

NORTHERN CALIFORNIA – The ongoing battle over suction dredge mining is headed to federal court, as a group of miners plans to challenge a state-imposed moratorium on the practice which went into effect in August.

The topic of suction dredge mining is a complex one, complete with proponents and opponents with fiercely held views, each bringing to the table science that backs their stances and a deep ideological divide about the use of natural resources.

In August, Gov. Arnold Schwarzenegger signed SB 670, emergency legislation written by North Coast Sen. Patricia Wiggins (D-Santa Rosa). Two years previously, he had vetoed a bill to limit the practice.

The bill put into effect an immediate moratorium on all instream suction dredge mining, which involves a vacuum system run by a small engine that runs gravel and materials from the bottom of a stream through a system to strain out gold.

Suction dredging operations performed for the regular maintenance of energy or water supply management infrastructure, flood control or navigational purposes are allowed to continue.

The suction dredging ban will be in effect until the California Department of Fish and Game (DFG) completes a court-ordered environmental review of its permitting program, expected in late summer 2011.

In the wake of the North Coast fisheries closure, Wiggins said the measure was needed while the impacts of the practice on the salmon were studied. Scientific studies completed to date have had varying conclusions about suction dredge mining, which both sides in the debate point to in defending their stances.

However, miners and business owners in California's far northern reaches believe the legislation is doing them real harm, as they watch their income shrink to nothing in the wake of the moratorium.

“We are seriously considering a preliminary injunction,” said attorney David Young, who has filed a lawsuit against the state on behalf of Public Lands for the People.

That injunction, said Young, could lift the state's moratorium if the court finds the state is infringing on federal rights, particularly under federal mining law established in 1872. “The state has gone into an area that is preempted by the federal government,” Young said.

S. Craig Tucker, PhD, campaign coordinator for the Karuk Tribe, said the tribe is intervening on behalf of the state in the case.

The law invalidated approximately 3,624 mining permits around the state and made suction dredge mining a misdemeanor, according to DFG. Miners who violate the moratorium could face a fine of up to $1,000 and six months in jail.

Jordan Traverso, a DFG spokesperson, said the agency doesn't know for certain if any citations have been issued, but they believe that most miners have complied and switched “to other legal methods of mining.”

However, Gerald Hobbs, president of Public Lands for the People, said, “There are many still out there dredging.”

He added, “I can't advocate that – I can't blame them, either.”

Revenues from the permit program, said Traverso, weren't sufficient to meet its expenditures. She said permits cost $47 for residents and $185.25 for nonresidents.

Hobbs said suction dredge mining primarily takes place in and around the Yuba, Klamath, Scott and Salmon rivers. The mother lode, he said is farther south, near Sacramento.

Study of suction dredge mining under way

On Nov. 2, DFG announced that it planned to host a series of scoping meetings this month in Fresno, Sacramento and Redding to take public comment on the study. An environmental impact review on the agency's suction dredge mining permit program also is under way, with comments due by Dec. 3.

DFG already has released a 122-page literature review on the permitting program, which can be found at http://www.dfg.ca.gov/suctiondredge/ .

Tucker said the tribe expects to be “intimately involved” in the scoping process.

He said the hope is that the best available science will be brought to the table, and that new regulations will be crafted that will allow dredging in certain circumstances and certain places, and done in such a way that it won't harm fish.

It's not fair to say that every place that's dredged impacts fish, said Tucker. “It's going to be different for every reach of river,” and impacts from river to river need to be considered.

“I don't think the science would show that you can't put any dredges anywhere in the river,” he said. “It's about where and when.”

But for some miners there's little trust in the public process, and they plan to challenge the state's right to, in their view, infringe on federally granted mining rights.

“Our position is, it's not going to be satisfactory to begin with,” said Hobbs.

He said if the findings aren't restrictive enough, he expects environmentalists and the Karuk Tribe will sue. If the proposed regulations are too restrictive, Hobbs said his group will sue.

Traverso said DFG released a final EIR in 1994 and adopted the existing suction dredge mining regulations. The agency also prepared a draft EIR to reconsider the regulations in 1997, but she said that process was not completed.

Another review had begun as the result of a 2005 lawsuit filed against the state by the Karuk Tribe, a major sponsor of Wiggins' legislation, in an effort to force DFG to overhaul its suction dredging rules.

The tribe, California Trout, Friends of the North Fork and the Sierra Fund then petitioned DFG to issue emergency regulations to limit dredging on Klamath tributaries and five other streams in the Sierra as they worked on the environmental impact report (EIR). DFG officials reportedly refused to issue regulations, arguing that they cannot do so under current law.

In 2007 DFG began seeking comments from the public on whether suction dredge mining had adverse environmental impacts, if the activity as permitted under DFG regulations was harming fish and whether new information had come up since 1994 that showed there were significantly more severe environmental impacts that the agency previously had considered.

DFG's review was supposed to take 18 months and be completed by July 2008, but by the time Wiggins' legislation was passed this summer it still hadn't begun. The EIR never got off the ground because financial and staff resources weren't available, said Traverso.

Meanwhile, before the legislation passed with no end date known for DFG's review, the Alameda District court issued a preliminary injunction in the case in which DFG was ordered to immediately cease using general fund money to operate the suction dredge permitting program because it is being operated in violation of the California Environmental Quality Act (CEQA).

Hobbs said Public Lands for the People also has filed an appeal of that injunction.

Hobbs took part in the environmental impact report process for DFG's 1994 regulations update, which had a working committee. There's no such committee this time, said Hobbs, who maintained no new evidence has been presented from 1995 forward that shows damage from suction dredge mining.

Miners say they can't be in the river during spawning periods, that they care about the fish and don't harm them. Tucker, however, said they've seen evidence of dredges in the river at critical times.

There's also evidence, according to mining supporters, that the practice breaks up hardened gravel at the bottom of streams, making for better salmon nesting conditions.

Fisheries collapse pushes effort forward

The attempt to ban suction dredge mining wasn't new.

“This isn't the first time they've tried this,” said Siskiyou County Supervisor Marcia Armstrong, who spoke against Wiggins' bill.

In October 2007, Schwarzenegger vetoed AB 1032, a bill by then-Assembly member Lois Wolk (D-Davis), which would have authorized DFG to close areas to dredging if it determined the action was necessary to protect fish and wildlife resources, and would have let the agency specify the size and type of equipment to be used, as well as adjusting permit fees.

Schwarzenegger's veto message called the message “unnecessary,” noting that DFG had “the necessary authority to protect fish and wildlife resources from suction dredge mining.”

Despite the 2007 veto, Wiggins' bill to institute a moratorium appeared to gain momentum following the closure of the fisheries along the Pacific coast of California and Oregon.

In Wiggins' North Coast district, which includes Lake and Mendocino counties, coastal counties were heavily impacted when the fisheries were closed in 2008.

Wiggins chairs the Joint Committee on Fisheries and Aquaculture. Other legislators who saw impacts in their districts signed on as SB 670 co-authors:Assemblyman Jared Huffman (D-San Rafael), Sen. Lois Wolk (D-Davis), Assembly members Noreen Evans (D-Santa Rosa) and Dave Jones (D-Sacramento).

DFG's previously stalled study is now well under way, and Traverso said $1 million was included for the study in the 2008-09 budget, plus another $500,000 for 2009-10.

Teresa Schilling, a legislative aide with Wiggins' office, said Wiggins was looking for a way to get the process back on track “and get the state to do the job it should be doing.”

Schilling said Wiggins also was looking at ways to bring back salmon runs. Some of the bigger issues around the fisheries collapse is being addressed now as the state looks at the Bay-Delta, “which is really about how do we allocate water in a more fair and modern way” that can benefit salmon runs, she said.

In the case of SB 670, Wiggins said the moratorium was needed in order to help address the alarming decline of salmon and steelhead populations, which in turn were affecting the livelihoods of commercial fishermen, fish processors and charter boat operators.

She said the practice kills fish eggs, immature eels and churns up long-buried mercury left over from the gold mining era.

Schilling said they've received a lot of feedback on the bill. “There are economic impacts on both sides of the issue,” she said.

She said most of the studies say there is some impact on fish due to suction dredge mining, and the body of science points to the need for overhauling state regulations.

But while the legislation may have aimed to help the North Coast fisheries, the ripple effect wasn't good for the gold country.

In Armstrong's community, she said she's already seeing businesses hanging on by a thread.

In April Armstrong – who has worked on salmon issues since 1992, serving with the Klamath River Fisheries Task Force and the Five Counties Salmonid Conservation Program – testified before the California Senate Natural Resources and Water Committee and urged against SB 670's passage.

“It is our opinion that various studies have shown that suction dredge mining has a negligible effect on fisheries and can have a positive rehabilitative effect in the restoration of spawning gravels. We have found no published peer reviewed scientific field studies to the contrary,” she told the committee.

With a gold mining history heritage, Siskiyou County still sees people make a modest living on gold mining, said Armstrong. It's been a popular draw for tourists and an important micro economy in an area that suffered through the decline of the timber industry in recent decades as concerns about another creature – in that case, the northern spotted owl – ended livelihoods. Tourism has helped the area since.

She said an economic study shows Siskiyou county is dead last among the state's counties in terms of economic well-being, and has the lowest median income at $30,356, compared to $56,332 for California as a whole, and 65 percent of Siskiyou County households with children ages 0 to 17 are low income.

Siskiyou's September unemployment rate was 13.5 percent, compared to Lake's at 14.7 percent. Armstrong estimated the Happy Camp area's unemployment is 10 percent higher than the rest of Siskiyou County.

Armstrong said a mining claim is a property right that should have just compensation if it can't be used.

Bill Bird, spokesman for Sen. Sam Aanestad – whose 12-county area includes those most impacted by the suction dredge mining ban – said the senator's district includes Del Norte County, an area where salmon fishing is an important activity.

“You basically had two sides pitted against each other” – the suction dredgers and the fishermen, said Bird.

In the end, Aanestad looked at the issue from a statewide perspective and chose to argue against hurting an industry, Bird said. “Unfortunately, he was not able to garner the votes to stop the bill.”

Bird said their office has been told that DFG is halfway completed with its review, but no time frame was given for completion.

He said Aanestad's office has talked to people around the state whose livelihoods have been affected by the ban. “We know that the signing of the bill put a lot of them pretty much out of business.”

Bird said nobody's arguing that the salmon fishing industry hasn't collapsed, but he maintained it's not because of mining. Just like on the Klamath, salmon numbers are down in the Sacramento and American rivers, where there is no suction dredge mining below the dams. In the end, more study needs to be done, Bird added.

“Some industries are accepted and loved in California and others are not,” he said.

Armstrong said the Happy Camp area's chamber of commerce had a series of events this summer to try to boost the economy in the wake of the mining ban. There were cycling and other events passing through, but the money they left behind wasn't close to that gained through the miners.

That doesn't bode well for the area's businesses. “I suspect that there's going to be some problems in keeping some of those services in the community,” Armstrong said.

She said Happy Camp's family resource center is running out of emergency food supplies as winter approaches.

Tomorrow, tensions between miners and tribal members, and different perspectives of mining's impacts.

E-mail Elizabeth Larson at elarson@lakeconews.com This e-mail address is being protected from spam bots, you need JavaScript enabled to view it . Follow Lake County News on Twitter at http://twitter.com/LakeCoNews and on Facebook at http://www.facebook.com/pages/Lake-County-News/143156775604?ref=mf .

Lake County News | California - Rural California: Mining legislation has opponents, defenders
Rural California: Mining legislation has opponents, defenders

by Elizabeth Larson, Lake County News November 17, 2009
This is the second part of an article on the impacts of SB 670, which placed a moratorium on suction dredge mining statewide.

NORTHERN CALIFORNIA – In August, Gov. Arnold Schwarzenegger signed a bill to place an emergency moratorium on suction dredge mining..

The bill, SB 670, was authored by North Coast Sen. Patricia Wiggins, who said she was responding to concerns about salmon numbers.

The moratorium is to remain in place until the California Department of Fish and Game (DFG) completes and environmental impact review (EIR) on the practice. That process is under way, with scoping meetings taking place this month.

While supporters say it's a much-needed measure to protect fishing resources, opponents of the legislation have called it a smokescreen and a power grab by the Karuk Tribe.

Public Lands for the People is seeking to have an injunction placed on the moratorium, asserting that the state is interfering with federally protected mining rights.

Gerald Hobbs, president for Public Lands for the People, said the injunction should be in federal court next February.

“I think we'll prevail,” he said, adding that he wants to see suction dredge mining reinstated by next spring.

The measure has faced serious opposition since the beginning.

In a May statement made on the state Senate floor, Sen. Sam Aanestad, whose 12-county district in far Northern California saw a significant amount of suction dredge mining, called the legislation a “political end run,” by the Karuk, and urged fellow legislators to allow the DFG to continue with its review without interference.

Aanestad's office said there are more than 325 small retail businesses in the state involved in small scale gold dredging, and the ban would endanger their businesses.

He also pointed to $60 million in benefit that California's economy enjoys because of the spending of small scale gold dredgers as they purchase fuel, food, camping, diving equipment, hardware and lodging purchases.

The measure passed anyway.

“The proposed ban poses yet another significant blow to the fragile rural economies that I represent,” Aanestad wrote to Schwarzenegger in an attempt to get the governor to veto the bill.

Aanestad pointed out in his letter to the governor that there is no scientific evidence on record that shows suction dredge mining is harmful to the environment. He quoted a study by the U.S. Army Corps of Engineers concluded that “the effects of suction dredge mining are so small and so short-term as to not warrant the regulations being imposed in many cases.”

Businessman Bruce Johnson, who owns the 20-space Mid River RV Park in the Seiad Valley, 20 miles east of Happy Camp, estimated that 97 percent of his business is in jeopardy because of the ban.

Johnson, himself a suction dredge miner, said fellow miners have kept his park busy during the critical months of April to October. In turn, they've supported other businesses in the area.

Without their business, he's looking at the loss of his livelihood and an estimated two-thirds reduction in his park's value.

The miners contribute more than $2,500 to the Seiad Valley Volunteer Fire Department, where Johnson is a board member. Without those fund, he expects the fire department could close, which will have a ripple effect likely to impact local homeowners, who will not have that important safety net and can expect to pay higher fire insurance.

Johnson said he's already lost employees. If his park goes out of business, Johnson said other businesses may follow.

Just down the road is the Seiad Cafe, internationally renowned thanks to its pancake challenge. It, too, could go away.

“These are things that, once they're gone, you can't get back,” Johnson said.

Fishing numbers down

The Karuk Tribe's campaign coordinator, S Craig Tucker, PhD, said even in a good year for fish runs on the Klamath, fish numbers still are only about 8 to 10 percent of historical abundance.

In recent years, commercial fishing guides are out of work and tribal members are unable to provide salmon for families or for ceremonies.

“We do have some evidence that it causes an impact,” he said of dredging..

Some studies show that it reintroduces the highly toxic methylmercury into the water column.

The Pacific Fisheries Management Council, which advises the federal government on how many fish can be harvested, includes in its harvest allocation enough fish to divide between natives and non-natives, he said.

He said tribal members are still fishing and harvesting the allocation.

Tucker said the tribes have a right to a subsistence fishery. Thee Karuk Tribe has the most limited fishery among the tribes in the lower Klamath. Recently, the Karuk caught a couple hundred fish for 4,000 tribal members.

He said there are more fishermen who generate more economic activity than miners and suction dredge mining.

There are many reasons for habitat problems, said Tucker. Mining is just one of them; timber harvesting and dams are among many others.

The miners have never been limited in their activity, said Tucker. “Fishermen can't go fishing, but the restrictions haven't applied to the miners,” he said.

Tensions arise between miners, tribe

Much of the tension regarding suction dredge mining has arisen through disagreements between miners and the Karuk Tribe, assisted by what Johnson called “eco nuts.”

Siskiyou County Supervisor Marcia Armstrong said the New 49ers, one of the principal mining groups in Northern California, purchased a lot of mining claims on the lower Klamath River and upper Salmon River, where not much mining had taken place.

Lawsuits began several years ago, said James Buchal, a Portland, Ore. attorney who represents the New 49ers.

He became involved about five years ago. At that point, the New 49ers had sat down with the tribe to work out which areas were culturally sensitives and should be avoided by the miners. The group then got the DFG permits, and the tribe promptly sued, he said.

Tucker said the tribe met with various mining groups but “No one could exactly represent the entire mining community.”

He said the Karuk offered the miners a settlement in 2006 which included restrictions on mining in the Klamath, particularly around critical habitat areas at certain times.

“It was a pretty modest restriction,” he said. “The state of California was willing to accept it, the miners were not.”

In particular, the New 49ers blocked the agreement, and everyone else got punished for it, said Tucker.

He added, “I don't think compromise is in their vocabulary,” which he said led to the statewide ban.

Outside of court, miner alleges that there were altercations between them and tribal members. The sabotage included damaging cars and worse; Johnson said someone wiped down equipment with poison oak, and a woman ended up in the hospital.

Worse still, shots were fired over club members' heads. “There's no way to legitimize this behavior,” he said.

Tucker said he's unaware of tribal members trying to intimidate miners. However, he said he can show reams of comments from Internet chat forums in which miners made racist and threatening comments toward the tribe.

He said showing up in the middle of an Indian community with a name like “New 49ers” shows a lack of cultural sensitivity.

Buchal said he has study after study that show fish aren't harmed, and no sign that the practice has ever killed fish.

He cited a study by now-retired Oregon State University professor, Peter Bayley, who studied the Rogue River and found no relationship between mining and fishing numbers.

Buchal blames a mix of politics by environmental groups, lobbyists, the tribe and the Legislature – which he called “essentially insane” – for the ban.

“The fishermen, to some extent, have wiped out the fish through overfishing,” he said.

That, coupled with terrible ocean conditions in the 1990s, led to the fishing situation and the subsequent mining ban, said Buchal.

“The chief fallout,” noted Buchal, “is that people just go to other states to mine.”

The possibility of an influx of miners has Oregon Gov. Ted Kulongoski concerned. On Oct. 15 he wrote to Secretary of the Interior Ken Salazar to ask for wilderness protection for the Siskiyou Wild Rivers area surrounding the existing Kalmiopsis Wilderness.

“California recently banned the use of suction dredge mining, the same type of destructive mining that is used in southwest Oregon,” he wrote. “We are very concerned that the suction dredge miners are now heading for Oregon.”

Johnson said he believes people who have decided that natural resources are good nothing more than taking pictures are now in control, and he believes that attitude ties in with the efforts to remove dams on the rivers.

“The voices of people on this side of the issue are not being heard,” he said. “I don't know where to go from here.”

Different perspectives on mining's impacts

Armstrong said that suction dredge mining – which can't take place during salmon spawning or during the summer steelhead run – isn't responsible for fish declines. She said 80 to 90 percent of the juvenile salmon are lost to disease in the Klamath River, not its tributaries.

Total maximum daily load (TMDL) restrictions also have been proposed for the practice, Armstrong said.

She said the bottom of the creeks have, in some areas, become like hardpan from earlier mining practices. The suction dredging has been shown to create deep water holes for the fish, and are helping open up old, sealed springs that had contributed to water temperatures.

Johnson, who has worked as a commercial fisherman in Alaska and loves being around fish, said suction dredge mining neither kills nor hurts them.

He explained that they vacuum materials up off the bottom of the creek, put them through a filter and put the rest of the materials back into the creek. Usually, fish come near to feed off the biomass that's being released from the process, which he said is “really cool” to see.

“It's an amazing little ecosystem that starts going on there,” he said.

Dr. Peter Moyle, professor of wildlife, fish and conservation biology at the University of California, Davis' Center for Watershed Sciences, has conducted studies on the practice and concluded that it has a negative impact.

“It is too soon to tell if the moratorium has had a positive impact on salmon populations and in fact this will always be hard to demonstrate because no one is studying the issue,” Moyle told Lake County News in an e-mail message..

Moyle said the state's fisheries agencies, such as DFG, are “woefully short” of funds and manpower to do their jobs. “Also there are multiple factors affecting the fish populations so separating causes is difficult,” he wrote.

“But given the severely threatened nature of summer steelhead, spring chinook salmon, and coho salmon populations it is best to assume that dredging (and associated activity) is having a negative impact unless it can be proven otherwise. As studies show, there are lots of reasons to suspect an impact is there,” Moyle noted.

He said the salmon involved in the Klamath are the same as those on the North Coast, although somewhat different populations, including steelhead, coho and chinook.

Tucker said the moratorium “seems to be mostly working.”

Armstrong said they're expecting one of the best chinook runs in many years this year, despite the fact that earlier in the season dredging was not taking place.

Tucker agreed, attributing the better run to the fact that there is virtually no ocean commercial fishing season. When there is no fishing pressure in the ocean there will be more fish in the Klamath. Meanwhile, he said there was a “horrible” run of fish on the Sacramento River.

Dwindling chances to build wealth

Hobbs said opponents are treating suction dredge mining like a recreational activity, when it's a wealth building activity that he maintains is protected by the US Constitution's Fifth and 14th Amendments.

“If it doesn't come from the earth it doesn't create wealth,” he said.

For those who suction dredge mine, Hobbs explained that a bad season means they can't carry themselves through the winter.

Hobbs said science “is nonexistent today,” and accused Moyle and other scientists of twisting the evidence to suit the environmentalists' agenda.

He added that the fight over suction dredge mining is all about money, because small small miners are the last wealth building entities that exist.

Tucker said everyone is going to have to make some sacrifices – including miners – if fisheries are to be restored.

While there are about 4,000 suction dredge permits, there are 2.4 million fishing license, not counting those for commercial fishing, he said.

“Fish,” Tucker added, “are more valuable than gold.”

Current information on the DFG review and its schedule is available at www.dfg.ca.gov/suctiondredge/ . Additional information can be found at www..dfg.ca.gov/licensing/specialpermits/suctiondredge .

E-mail Elizabeth Larson at elarson@lakeconews.com This e-mail address is being protected from spam bots, you need JavaScript enabled to view it . Follow Lake County News on Twitter at http://twitter.com/LakeCoNews and on Facebook at http://www.facebook.com/pages/Lake-County-News/143156775604?ref=mf .

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