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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.
Lake County News | California - Rural California: Mining legislation has opponents, defenders
Page Updated: Saturday November 21, 2009 01:34 AM Pacific
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