WMA August 2016 News - Western Mining Alliance

Voice of the Independent Miner
August 2016
Copyright 2016  Western Mining Alliance  www.theminingalliance.com
1
Rinehart Loses
“When I refuse to obey an unjust law, I do not contest the right of the majority to command, but I simply appeal from the sovereignty of the people to the sovereignty of mankind. Some assert a majority can never out‐step the boundaries of justice in those affairs which are its own. Full power may be given to the majority which represents them. But this is the language of a slave.” Alexis De Tocqueville, Democracy in America, 1830
On August 22, 2016 the California Supreme Court issued
their decision in the long‐running Rinehart case resolving
the issue of preemption in California courts.
The ruling is likely the most important mining decision
since the Sawyer Decision in 1884 which effectively
stopped hydraulic mining by limiting their downstream
effects. The hydraulic mines were unsuccessful at being
able to stop the effects of mining and the measures
required became too cost prohibitive to continue hydraulic
operations.
Rinehart’s attorney, James Buchal, summed up the
decision “In general, the Court oversimplified Rinehart’s
position and generally ignored the careful balance
Congress had struck which recognizes that some level of
environmental impact is necessary and unavoidably
associated with mining.”
The new standard for mining is now no effects
whatsoever.
Relying on the Sawyer Decision as precedence the Court
wrote “Of note, the Woodruff court considered at length
and rejected the mining industry‘s argument for
preemption under the Mining Law of 1872.”
NO RIGHT TO MINE
In a long string of cases the rights of miners to mine has
been upheld in federal court which has consistently held a
state may not prohibit mining.
The California Supreme Court decision departs from the
federal court rulings by holding a state may indeed
prohibit mining and finding state laws always preempt
federal laws when the federal law doesn’t provide explicit
language restricting the states authority to regulate. In this
case the 1872 Mining Law doesn’t explicitly preempt
states police powers.
Attorney for Rinehart, James Buchal noted content of the
decision, “...the Court, having denied Rinehart any
opportunity to present any evidence whatsoever,
concludes that regulation is justified by Rinehart’s asserted
(and non‐existent) impacts upon “fish, water quality, and
the health of the state’s inhabitants”. In substance, the
Supreme Court decision grants the legislature [the
authority] to ban mining on federal land for any reason or
no reason.”
The California Supreme Court found “...while Congress
sought to protect miners‘ real property interests, it did not
go further and guarantee to them a right to mine
immunized from exercises of the states‘ police powers.”
ENVIRONMENTAL LAWS TRUMP MINING LAWS
The California Supreme Court decision was founded on a
court case we’ve mentioned several times, the California
Coastal Commission versus Granite Rock, known simply as
Granite Rock. You can read this case in its entirety by going
to our website and the Research – Legal page.
If you want to understand the ruling, and how future
courts will rule, you must read Granite Rock. If you want to
win a preemption fight – understand Granite Rock.
In the Granite Rock case a marble mining company located
an open pit mine in the Big Sur area along the California
Coast which was within the jurisdiction of the newly
formed California Coastal Commission (CCC). The CCC
demanded the mine obtain a permit from them to
operate.
The mine responded by suing in federal court charging the
CCC had no authority to require a state permit to operate
on a federal mining claim. The case went all the way to the
U.S. Supreme Court who, in a split decision, found a state
may require permits to protect the environment.
The State, in the Rinehart case, argued Granite Rock the
Granite Rock case gave them the authority to prohibit
dredging, or any other such activity they wished. In
affirming the State’s argument the California Supreme
Court wrote, “The police power of the State extends over
the federal public domain at least when there is no
legislation by Congress on the subject.”
Page 2
Rinehart Loses
This is, a very narrow reading of the Granite Rock case. It
did no such thing. In Granite Rock the U.S. Supreme Court
merely agreed the State could require a permit, nothing
more. Remember, the mining company argued the State
couldn’t require a permit at all, “... there is no possible set
of conditions the Coastal Commission could place on its
permit that would not conflict with federal law—that any
state permit requirement is per se pre‐empted.”
Rinehart argued a much more narrow defense than
Granite Rock. Rinehart argued the state couldn’t prohibit
the use of a suction dredge as the only viable means of
mining his claim. This is an important distinction. In the
Granite Rock case the State argued prohibition would run
afoul of federal preemption, but strenuously argued they
would not prohibit.
The core issue in Granite Rock, and again in Rinehart, is
whether a state law may be imposed on federal lands
within the state’s boundaries. The U.S. Supreme Court
answered that question in a case known as Kleppe,
“Absent consent or cession a State undoubtedly retains
jurisdiction over federal lands within its territory, but
Congress equally surely retains the power to enact
legislation respecting those lands pursuant to the Property
Clause.”
The remaining issue becomes how far can those laws go?
In Rinehart the State expanded upon the Granite Rock
argument by further arguing they could prohibit if there
were any environmental effects whatsoever, or even social
effects. Had they made this argument in the initial Granite
Rock case the outcome of the case may have been very
different, but restrictions on rights are usually added
incrementally, not in a package which can be shot down.
Environmental regulation was never considered as a factor
when passing the 1872 Mining Law. As the U.S. Supreme
Court noted, “Granite Rock concedes that the Mining Act
of 1872, as originally passed, expressed no legislative
intent on the as yet rarely contemplated subject of
environmental regulation.”
Granite Rock did indeed open the door to State
environmental regulation of federal mining claims, but
neither the U.S. Supreme Court nor Congress anticipated
the expansion of the Granite Rock ruling found in the
Rinehart case. As the U.S. Supreme Court wrote;
“In the present case, the Coastal Commission has
consistently maintained that it does not seek to prohibit
mining of the unpatented claim on national forest land.
("The Coastal Commission also argues that the Mining Act
does not preempt state environmental regulation of federal
land unless the regulation prohibits mining altogether. . .")
("The Coastal Commission seeks not to prohibit or 'veto,'
but to regulate Granite Rock's mining activity in
accordance with the detailed requirements of the CCA. . .
.There is no reason to find that the Coastal Commission will
apply the CCA's regulations so as to deprive Granite Rock of
its rights under the Mining Act"); ("Despite Granite Rock's
characterization of Coastal Act regulation as a 'veto' or ban
of mining, Granite Rock has not applied for any coastal
permit, and the State . . . has not indicated that it would in
fact ban such activity. . .
The question presented is merely whether the state can
regulate uses rather than prohibit them. Put another way,
the state is not seeking to determine basic uses of federal
land: rather it is seeking to regulate a given mining use so
that it is carried out in a more environmentally sensitive
and resource‐protective fashion").
In an often quoted line, in this long‐running litigation, the
U.S. Supreme Court left the door open to readdress the
Granite Rock decision.
“The line between environmental regulation and land use
planning will not always be bright; for example, one may
hypothesize a state environmental regulation so severe
that a particular land use would become commercially
impracticable.”
“However, the core activity described by each phrase is
undoubtedly different. Land use planning in essence
chooses particular uses for the land; environmental
regulation, at its core, does not mandate particular uses of
the land but requires only that, however the land is used,
damage to the environment is kept within prescribed limits.
Congress has indicated its understanding of land use
planning and environmental regulation as distinct
activities.”
The California Supreme Court decision seems to run
counter to the arguments the State made in front of the
U.S. Supreme Court to acquire the authority to regulate a
mining claim at all. In a split decision the U.S. Supreme
Court grudgingly affirmed this right, but it was only after
the assurances of the State they did not intend to prohibit,
merely regulate.
Assurances from the State appear to be of little value.
Page 3
Rinehart Loses
In determining a federal mining claim offers no rights to
mine the California Supreme Court reached back to a
mining case known as “Shumway” and cites this as
evidence a claim offers nothing more than a temporary
parcel of land to hang your hat on.
“Shumway concludes, consistent with precedent, that the
Forest Service‘s authority extends to regulating mining
claims insofar as such ―regula ons are ‘reasonable‘ and
do not impermissibly encroach on legitimate uses incident
to mining and mill site claims.‖ (Shumway, at p. 1107; see
U. S. v. Weiss (9th Cir. 1981) 642 F.2d 296, 298–299
[concluding the forest service may impose reasonable
environmental regulations on mining operations in national
forests].) Shumway does not interpret section 612(b), or
any other federal statute, as preempting state
environmental regulations.”
The Court goes on to bolster its argument a mining claim is
merely a property right by citing the 1872 Mining Law.
“Rinehart correctly notes the 1872 law conferred on him
and others specific property rights. Rinehart has an interest
in land, a real property right to possess the area of his
claim for particular purposes. But the grant of a real
property interest does not ordinarily carry with it immunity
from regulation, a guarantee that the state police power
will be inoperative simply because the source of the real
property interest is federal. Given this, if Congress intended
to do more, we can reasonably infer it would have said so.
It did not;”
“In contrast, the purpose Rinehart attributes to these
laws—an intent to confer a right to mine, immune in whole
or in part from curtailment by regulation—is not
apparent.”
NO RIGHT TO MINE YOUR MINING CLAIM
The conclusion the California Supreme Court reaches is
that although Congress passed legislation which protected
mining claims, there was no intent for those claims to
actually be mined.
“We conclude the State’s moratorium is not preempted.
The federal laws Rinehart relies upon reflect a
Congressional intent to afford prospectors secure
possession of, and in some instances, title to, the places
they mine.”
As absurd as this conclusion may appear, it’s factually
based. The California Supreme Court exhaustively
reviewed the legislative record leading up to the 1872
Mining Law and found the primary purpose of the law was
the establishment of a mining claim, but there was little
discussion of the actual mining of a mining claim.
Perhaps the flaw in the Supreme Court’s thinking centers
on context. In 1867 it would have been a ridiculous notion
to consider the primary purpose of a mining claim to be
anything other than mining and this portion of a rather
obvious use was left out of the act. Regardless, the Court is
correct in their reading, if not their interpretation, of the
1872 Mining Law.
If, as the Court asserts, a mining claim is simply a real
estate interest then what can you do with a mining claim?
The Federal Land Management Policy Act prohibits using a
mining claim for uses other than mining and uses
reasonably incidental to mining. If you can’t mine your
claim then you are now in the situation of having a mining
claim, but having no valid use for it.
As the California Supreme Court states, in regards to the
1872 Mining Act “... the act as a whole is devoted entirely
to the allocation of real property interests among those
who would exploit the mineral wealth of the nation‘s
lands, not regulation of the process of exploitation—the
mining—itself.”
“...the main inducement offered was the preservation, and
endorsement going forward, of an existing system for the
allocation of real property rights. The 1866 act was drafted
as protection for miners against the threatened exercise
by Congress of its latent property clause power to sell
land.”
Attorney James Buchal presented the next step in the
mining litigation “Fortunately, the question of federal
preemption is presently before the federal Ninth Circuit
Court of Appeals, concerning the somewhat broader
Oregon ban on motorized mining. I continue to hope that
the federal courts may someday correct the California
Supreme
Court’s
parochial
and
unsupportable
interpretations of federal law in a future case.”
Page 4
Legal Updates
we’ll be setting up a status conference with the State
and the judge and we’ll be requesting scheduling of the
trial court cases.
RINEHART CASE
Rinehart has 90 days in which to petition the U.S. Supreme
Court to review his case. The clock started ticking on 22
August 2016.
BOHMKER (OREGON) CASE
The State of Oregon moved for a 60 day delay in the
Appeals Court and the federal court approved the delay.
SAN BERNARDINO CASES
The San Bernardino cases were stayed (put on hold)
pending a decision in the Rinehart case. With that done
RAY NUTTING FILES CIVIL SUIT
On August 4th former El Dorado County Supervisor, Ray
Nutting, who was an outspoken supporter of suction
dredging and individual liberty filed a civil suit against El
Dorado County citing misconduct in forcing him from
office.
Nutting was forced from office in June 2014 after four
terms, in a legal battle in which the county relentlessly
pursued Nutting on charges he misused his office despite
no wrongdoing.
Issue Updates
FROGS GET 1.8 MILLION ACRES
STUDY SAYS DREDGING WON’T HARM
ENDANGERED SPECIES
In an expected decision the USFWS announced the
establishment of 1.8 million acres of critical habitat to
protect the Mountain Yellow Legged Frog and the
Yosemite Toad. This will close off to dredging large parts of
Sierra and Plumas County as well as portions of other
counties in the Sierras.
The Mountain Yellow Legged Frog, as opposed to the
USFWS assurances results in the closure of hundreds of
dredging areas and these closures are already reflected in
the CDFW 2012 Regulations.
You can find the link to the full decision on our website as
well as our article on this decision on the front page of our
website.
The US Marine Fisheries Agency issued a biological opinion
on August 4, 2016 stating suction dredging won’t
jeopardize endangered species including: Oregon Coast
Coho Salmon; Southern Oregon Coast Coho Salmon;
Southern Distinct Population of the Green Sturgeon; and
the Southern Distinct Population of the Pacific Euchalon.
Although the study is heavily dependent on various
restrictions it is still an approval for dredging.
The study was prepared for the Siskiyou – Rogue River
region of Oregon and California. You can read the full (227
pages) study on the research section of our website.
Visit the WMA website at www.theminingalliance.com for the
latest information, stories and as a source for research and
documents. We’ve worked hard to provide the resources you
need to stay abreast of breaking new and issues.
Page 5
SUPPORT THE LAWSUIT!
Do you think the Rinehart decision was the end of it? Not by
a long shot. We will continue the litigation and pushing back
against the State and environmentalists. The Rinehart case
takes one case off the plate and we now focus our attention
on the San Bernardino cases.
to our non‐profit organization. You can join or donate from
the our website at www.theminingalliance.com.
We can also accept “in‐kind” donations. So if you don’t know
what to do with that late model luxury SUV with a lift kit and
big tires, we can help you out. If you’re holding on to gold,
and you don’t want your heirs to just squander it, then you
can send us the gold and we’ll take it as a donation, or we’ll
sell it for you tack on some extra to help us pay the lawyer
bills. We can take anything of value including gold; mining
claims; mining equipment; vehicles or virtually anything of
value.
You have two ways to contribute to the fight. You can join
the Western Mining Alliance. As a Gold Level member you
will receive the annual Claims Report with the State Report
of your choice. At the Silver Level you will have the option to
purchase the Claims Report for California. We will not be
selling Claims Reports for California this year to the general
public. You will also receive access to the members only
portion of the web site we’ll have up in a month or two
where we’ll post our “hot tips” for mining claims. Each
month we’ll begin posting a couple of locations we think you
should check out.
Please remember we’re still in the legal fight, we’ve still got
legal bills.
You can also go to www.sierrarivers.com on our online store
where you can see claims and equipment we have for sale.
A second way to contribute, tax‐free, is to make a donation
A big thanks to East Bay Prospectors and AMRA for their continuing support of our pursuit of justice. Thank you also to our new members for keeping this fight alive.
NEW BENEFIT FOR MEMBERS OF WMA
As many of you know the WMA runs our own mining claims database. We track all claims for California, Oregon, Washington,
Idaho, Arizona and Nevada. Each year WMA members receive a copy of the annual Claims Report for the state of their
choice. Each year we continue to add more capability to our database and recently we added the ability to notify members if
a new claim was filed near one of their existing claims.
For WMA members we are now providing complimentary claims monitoring whereby each month you will receive an email
notifying you if someone has filed a claim near one of your existing claims, or an email letting you know there’s been no
filings. This will begin with an email on 1 September and each month thereafter. The first report will cover the year prior
(August to August). Subsequent reports will be for the prior 30 days.
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Safety Person Mine Startup
MSHA Approved Instructor
Part 46 & 48 Training Policy
CAL/OSHA Certified and Licensed
Safety Representative
Gas Tester
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Blaster
FED/OSHA Authorized Trainer
Red Cross, First Aid & CPR Trainer
CAL State Certified Electrician
Call me – First Consultation is free
Bill Slack 530.277.3447 [email protected] Page 6
WMA PRESIDENT COMMENTS
“It’s not whether you get knocked down; its whether you get back up.” Vince Lombardi
If you want to make your shackles more comfortable then go
ahead and sit this fight out, because it’s a losing fight. That’s the
ugly truth, it’s a losing fight.
We use to run our articles with a closing of “Molon Labe.”
Which in Greek means “Come take them.”
It was the response of King Leonidas to the Persians in 432 BC at
the Battle of Thermopylae. A battle where every Greek died and
the Persians proceeded to burn Athens to the ground.
In every fight for freedom many lose some, some lose all. Do we
stop fighting and concede to the State?
“It is not the critic who counts; not the man who points
out how the strong man stumbles, or where the doer of
deeds could have done them better. The credit belongs
to the man who is actually in the arena, whose face is
marred by dust and sweat and blood, who strives
valiantly; who errs and comes short again and again;
because there is not effort without error and
shortcomings; but who does actually strive to do the
deed; who knows the great enthusiasm, the great
devotion, who spends himself in a worthy cause, who at
the best knows in the end the triumph of high
achievement and who at the worst, if he fails, at least
he fails while daring greatly. So that his place shall
never be with those cold and timid souls who know
neither victory nor defeat.” Teddy Roosevelt
Rinehart lost
OK. The forums and social networks are ablaze with
these discussions. Lots of chatter.
What happened to our willingness to fight that given a loss we
turn on ourselves and start to point fingers at those in the ring?
Perhaps all our lawsuits are losing causes. Are you willing to just
go sit on the couch and remember the days when you could
own a mining claim and run a suction dredge for a little bit of
fun with the dream of one day making a living doing it?
We’re the people who built this country. We’re the people who
wrote into the Constitution the safeguards to protect ourselves
from the bullies we knew would eventually rise up to rip our
Constitution from us. Each California Assembly member
represents 489,000 people. Sierra County, California, has a
population of just over 3,000 people.
Who represents Sierra County? Apparently the representatives
from Southern California do because they’re the ones writing
the laws. No representative from Northern California is writing
these laws. They wouldn’t dare because that’s not the will of
the people, the sovereign people of Northern California.
Yes, the California Supreme Court ruled we have no right to
mine. Nor does any other citizen have a right to earn a living
apparently. The Supreme Court essentially said your right to
earn a living ends when the majority decides what you do
offends them.
Raise your hand if you believe a California court was
going to rule for Rinehart. Anyone?
We now have a government which is sold to the highest bidder.
We needed to support the Rinehart case, and many of
you did. Thanks. We still need to support it, and the
Bohmker Case in Oregon, and our CEQA Case, and Keith
Walker’s case. It ain’t over. Not by a long shot. Sure we
lost – again.
I’ll stay in the fight. Maybe we’ll keep losing, but we’re the sand
in the machine which maybe slows the gears down just a bit.
Maybe we’re the only ones who are exposing this racket. Maybe
this is just a lost cause, but can you think of another cause
which is so important as saving our democracy?
Even in losing causes we need to fight. We are still a free
people as long as we believe we are a free people. Once
we accept the notion we’ve lost our freedom we’re
doomed.
7
Check out the WMA Online store at www.sierrarivers.com. 3 New claims available.
8
WHAT NOW?
There is no understating the importance of the Rinehart
case for suction dredging and mining in general.
The two most important things to take away from the
California Supreme Court decision are (1) You have no
right to mine and (2) A mining claim only gives you a real
estate interest in land, and nothing further.
There is no more argument within the state of California
over the issue of preemption. It’s settled in the State’s
favor. The State may prohibit whatever they want,
whenever they want with or without rationale as long as
the prohibition is wrapped in a legitimate police power
of the State.
There’s no point arguing about the decision, it won’t
change anything. We need to take a careful look at our
options and decide where to go from here.
Our options are not foreclosed, yet they are clearer.
PETITION THE U.S. SUPREME COURT
It is possible the Rinehart case may be picked up the U.S.
Supreme Court. There is a conflict between the South
Dakota ruling and the California Supreme Court ruling.
There is also some unfinished business in regards to the
Granite Rock case which the U.S. Supreme Court may
want to address.
The California Supreme Court relied heavily on a very
narrow reading of the Granite Rock case, a reading
which would appear to be exactly the situation the U.S.
Supreme Court cautioned about when they initially ruled
in their split decision. If the U.S. Supreme Court
accepted the Rinehart case it would be a positive
development.
We believe we have a better than fair chance at the Supreme
Court picking up this case because of the loose ends which were
left in the decision. It seems apparent the U.S. Supreme Court
ruled pretty narrowly in the Granite Rock case, but cautioned
prohibitions could cross the line into illegal land use decisions
which is the sole domain of Congress in regards to federal land.
We have 90 days from the decision to submitting a petition to
the U.S. Supreme Court.
THE BOHMKER CASE (OREGON)
The adverse magistrate ruling in the Bohmker case over the
Oregon suction dredging ban is currently before a federal
appeals court. Certainly the California Supreme Court case will
factor into which way this goes. The federal court can either
reverse the magistrate ruling or support it. If the Bohmker case
is won then this sets up a likely petition to the U.S. Supreme
Court. If the Bohmker case is lost, then this case will also likely
be submitted to the U.S. Supreme Court as it will set up two
different rulings by two federal courts on the same issue (South
Dakota and Bohmker).
The Bohmker case right now may be our best hope of reversing
what happened in California, short of the Supreme Court.
THE CEQA CASE
The WMA/PLP CEQA case has never been tied to federal
preemption and will move forward regardless of what happens
in the federal courts.
The CEQA case challenges the Environmental Impact Report
conducted on suction dredging as being flawed. If CEQA is won,
then the 2012 EIR would be void and the only remaining EIR
would be the 1994 EIR.
9
WHERE TO NOW?
The environmentalists have pushed their propaganda to
the point where even the California Supreme Court has
adopted their slogans whereby suction dredges cause
“harm to humans.” Nowhere in the 1,388 page EIR does
it say a suction dredge causes harm to humans. This is
just propaganda.
Without fighting the CEQA case we’re left with an EIR
which will likely be the last EIR ever conducted on
suction dredging and the unfounded and speculative
findings will be allowed to stand.
If we’re successful in defeating the EIR then we still have
a valid 1994 EIR which will stand. Even if the legislature
requires another EIR, through legislation and
modification of the existing CEQA laws, we’ll be in a
much better position to fight the EIR every step of the
way.
It was certainly a fatal mistake for the mining community
representatives in 2005 to agree to allow the State to
conduct another EIR, but this time around we won’t be
so naive.
MINING DISTRICTS
Some have posited that Mining Districts are the answer.
This is the text of the 1872 Mining Law in regards to
mining districts, the same text the State presented to
the Supreme Court in the Rinehart case, and in which
the Supreme Court agreed.
SEC. 5. That the miners of each mining district may make
rules regulations not in conflict with the laws of the
United States, or with the laws of the State or Territory in
which the district is situated, governing the location,
manner of recording, amount of work necessary to hold
possession of a mining‐claim, subject to the following
requirements...”
The California Supreme Court has already issued their
opinion on mining districts as provided below,
“More generally, the law endorses in the first instance
local, rather than federal, control over the mining fields.
(See 30 U.S.C. §§ 22 [mineral exploration on federal land
shall occur subject to ―the local customs or rules of
miners in the several mining districts, so far as the same
are applicable and not inconsistent with the laws
of the United States‖], 28 [permitting miners to adopt local rules
governing the possession of mining claims], 43 [approving state
regulation of mining claim sales].) These express
acknowledgements of the application of state and local law to
federal mining claims suggest an apparent willingness on the
part of Congress to let federal and state regulation broadly
coexist, especially insofar as those state laws relate to matters
other than a miner‘s ―possessory title.”
Mining districts may be a valid approach to coordinating with
the federal government on certain issues, but it appears from
the California ruling they could make no headway in restoring
suction dredging.
SETTLE
The State has always shown an interest in settling the remaining
cases which consist of the CEQA case and Keith Walker’s
challenge to AB 120, and there is a remaining New 49er
challenge which parallels Walker’s challenge over the one
subject rule in the passage of AB 120.
We could return to the settlement table and take what we can
get, which would be a whole lot less than had we settled two
years ago when we had some leverage. The reality now is we
have no leverage, no cards to play.
The preemption defense approach is now closed to us in
California courts. The only cards we have left to are the
remaining cases in San Bernardino, but these aren’t very big
bargaining chips.
If we settle now the EIR stands, the unconstitutional conduct of
the legislature stands and all of the Class A closures will remain.
We’ll be left with a maximum dredge size of 4” and some very
short mining seasons.
Even assuming we could reach some type of settlement
agreement is there anyone who believes the environmentalists
wouldn’t come right back at us on whatever rivers we could
manage to reopen? If not directly, then indirectly, through
pushing yet more critical habitat on top of mining areas?
We believe it would be a short term fix to even try to settle. It
would only be a matter of time before we lost it all and then we
wouldn’t have the CEQA case to fall back on, it could never be
resurrected.
10
WHAT’S WRONG WITH DEMOCRACY IN CALIFORNIA?
We miners are on the receiving end of this centralization of
government. While those in power, whether they be Democrat
or Republican squeal with glee at what they can accomplish
what we actually accomplish is the destruction of democracy.
Democracy only works at the smallest level. A republic is built
upon the willing union of many small political units.
The idea of people being sovereign is rooted in a type of
government where the smallest form of government reigns
supreme, not the largest form of government. The idea of
American democracy as De Tocqueville writes is founded in the
idea of the very smallest form of government, the Township.
Above – In small towns they still fly the flag, everyday
Did you know miners led the colonization of America?
History, as we know, has a way of being re‐written, but it
was us grubby miners who stepped onto the boats and
pushed the boundaries of civilization. We’re a restless,
opportunistic breed always willing to pack up our gear
and chase the next gold rush.
The history books write a story of people fleeing
religious persecution in Europe to settle the shores of
America, but perhaps the best observer of early America
was Alexis De Tocqueville who wrote,
“The men sent to Virginia were seekers of gold,
adventurers without resources and without character,
whose turbulent and restless spirit endangered the infant
colony.”
America was built on an idea of personal freedom, not
collective freedom. An idea which said the people are
sovereign and the people constitute the government.
This idea works when government is local. It doesn’t
work when government is centralized.
De Tocqueville writes of the dangers of centralization,
“A centralized government acquires immense power
when united to centralized administration. Thus
combined, it accustoms men to set their own will
habitually and completely aside; to submit, not only for
once, or upon one point, but in every respect, and at all
times. Not only, therefore, does this union of power
subdue them compulsorily, but it affects their ordinary
habits; it isolates them, and then influences each
separately.”
De Tocqueville writes of the importance of local government “It
is incontestably true, that the tastes and the habits of republican
government in the United States were first created in the
townships and provincial assemblies.”
For those of us with mining claims we know a township is simply
a 36 square mile of land made up of sections numbered 1 thru
36.
If you’ve lived in the Midwest, or the east coast you know a
township is more than that, it’s a political entity and was the
foundation of democracy in this country.
A Township is more than just a square on the map, it was the
basis of power for “We the People.”
It was the State we fought to throw the yoke from our neck, and
yet, we find the yoke back on our neck.
How did this happen? In the name of efficiency and consistency
of laws. Consistency of laws is something we should absolutely
fear and for good reason.
Consistency of laws takes the authority from locally elected
judges and passes it to the legislature and sentencing
guidelines. We, the People, elect our judges local. If the
centralized authority can usurp our judges actions, by forcing
how they must rule, and how they must sentence, then there is
no independent judiciary. They become only the enforcement
arm of the legislature and not the independent guardians of the
Constitution.
11
DEMOCRACY IN CALIFORNIA CONTINUED
Democracy in America is based on political decisions
being made at the smallest form of government, the
township or county, not the most centralized, most
powerful form of government.
Does anyone believe Sierra or Plumas county would
have voted to ban dredging, or logging? Why not?
Because the representatives are accountable to the
people.
It’s a sham process whereby the northern counties have
a single representative in the legislature.
We have gladly and willingly allowed power to be
centralized at the State. Its valid to question why an
Assembly member from Beverly Hills pushed a suction
dredging ban in Sierra County. His response – his
constituents care about water quality.
Really? People in Malibu care about a suction dredge on
the Yuba River? If so, then what exactly gives them the
right to tell Sierra County what to do with their river?
Perhaps Sierra County should be advising them what to
do with the Los Angeles River because up here in Sierra
County we really care about that – don’t we?
“As the sovereignty of the Union is limited and
incomplete, its exercise is not dangerous to liberty; for it
does not excite those insatiable desires of fame and
power which have proved so fatal to great republics.”
The United States Constitution had certain safeguards
against the centralization of power.
The defense of the Republic relies on four fundamental
principles:
1. A balance of power.
In California the one party system has destroyed the
balance of power. The natural balancing of two political
parties is no longer and instead you find a legislature, an
executive branch and a judiciary all working together.
One makes the laws, one implements the laws and the
other branch is no more than a state police power,
designed merely to enforce the legislatures will. No
longer to protect the constitution.
2. A representative form of government.
People vote for representatives, there was never any
concept within the Constitution for people to directly
vote on issues.
The balance in the U.S. Constitution ensured the interests of the
States were represented in the form of a Senate. The two
chamber form of legislature ensures a balancing of interests
between the mass of people, and the protection of the
individual states.
California has no representation of the most important political
entity – the county. Had the U.S. Constitution been presented
this way there would never have been a United States. It’s
unlikely Rhode Island would have voted to ratify the
Constitution had they not been represented in the legislature.
The two safeguards in the United States Constitution have been
eliminated in the California Constitution. The U.S. Constitution
guarantees at least one representative of the people to each
state, and two senators to each state. There is truly equal
representation of all the states in the Union. None whatsoever
within the California constitution.
3. An informed electorate.
The electoral college was, and still is, the method of electing the
president and vice‐president. Not popular vote. The drafters of
the Constitution sought to protect the legislative process from
the day to day passions of the people by first creating a Senate,
and secondly protecting the elections by trying to create an
informed electorate, one which would have a stake in the
country.
We now elect representatives, and the executive branch based
on either name recognition or TV ads, it’s become nothing more
than a political version of America’s Got Talent.
4. Decentralization of power.
The single greatest blow to American democracy was the
passage of the 16th Amendment to the U.S. Constitution. The
federal income tax. It’s a fundamental rule whoever controls the
purse strings controls the power. This change to the
Constitution shifted the power, irreversibly, to the federal
government.
When you look to the reasons we’re losing the dredging fight,
it’s not because we’re not trying hard. It’s because we’ve lost
our vote. We dredgers have no representation.
Do you believe under a form of government the U.S.
Constitution created, where the county had more local power
than the state there would be a dredging ban?
This is why the State of Jefferson is so appealing to the people
of Northern California and Southern Oregon. They have lost
their representation in the democracy.
12
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13
Make it a Double, at Murphy’s Bar
“Free Willy.” Flanagan said.
and dredging.” I told Rocky.
“What’s he in for? Dredging without a permit?” I asked.
“Dredges were the only thing in the state which actually
removed mercury from the water, but they said the few
molecules we released into the water were going to harm
mothers and children.” Bob said.
“No, the killer whale.”
“Illegal fishing?” I replied.
“Whatever, his real name was Keiko.” Bob said.
“You can’t beat that argument, once you bring up the
mothers and children argument it’s game over.” Rocky said.
“And why are we talking about Keiko the fish?” I asked.
“The only problem is it wasn’t true.” Bob replied.
“Whale.” Bob replied. “He’s dead you know.”
“The California legislature and the California Supreme Court
believed its true.” Rocky replied as I put down my glass of
Old Tailings to watch the exchange.
“My sincerest regards to his family. I’m sure he’ll be missed.”
“He died in 2003 because he wouldn’t swim back out into
the ocean and join a pod of killer whales.” Bob said.
“And?” I asked.
“You know they spent over $20 million to free Willy, and in
the end he died.”
“It’s the same thing. A whole bunch of people feel really
good about themselves but you see the mercury is still there.
Now instead of a few molecules, pounds of the stuff is
moving down river with every flood.”
“They didn’t tell you that.” Rocky replied.
“And they didn’t tell you Willy died.” Bob responded.
“Live free or die I guess.”
“The point is a whole lot of people felt really good about
themselves, they made three movies and made a bunch of
money, but in the end freeing Willy wasn’t such a good
thing.” Bob said.
“With the recent court decision you guys shouldn’t care
anyways. You’re dinosaurs, the last of a breed, the last of the
miners and the court was like the meteorite which killed
them off. You miners are toast.” Rocky said wiping down the
bar.
“I hadn’t heard about the fish dying in the end part.” I
replied.
“We’re not miners.” Bob replied. “We’re real estate barons like Donald Trump.”
“They don’t make movies about whales dying in the end,
they only make movies which make you feel good about
freeing Willy. It wouldn’t have sounded so good where all
these activists spend $20 million only to release a whale
which didn’t want to be released and then died.”
“Right, and I run a bar because I’m fighting for the people,
like Hillary Clinton.” Rocky responded.
“OK, but we’re not fishermen so I don’t see where you’re
going with this.” I said as I picked up the remnants of my
glass of Old Tailings and held up two fingers for Rocky to
bring us two more beers.
“The same thing with dredging.”
“How do you figure?” I asked as Rocky set down to more
beers in front of us and said, “This I’ve got to hear how
freeing Willy and dredging are related.”
“Yeah, no kidding, the Court said the 1872 Mining Law really
wasn’t about mining at all, it was just a real estate law.” Bob
told Rocky.
“They said what?” I asked.
“As usual I’m going to assume you didn’t actually read the
document so I’ll give you the short version.” Bob said
somewhat sarcastically, which is his normal tone of voice
when he’s trying to prove how well read he is, even though
his prolific reading ability hasn’t made one bit of difference in
the litigation.
“With Bob, there’s a connection with everything. Even fish
14
Murphy’s Bar
“The California Supreme Court went back and read the
documents leading to the 1872 Mining Law and determined
the Congressional Act actually had nothing to do with
mining.” Bob said.
“Hence the title Mining Act.” I said.
“Exactly, you see that’s how foolish Congress can be, they
just assume if they title an act with the word Mining then
everyone would believe it had to do with mining, but you see
us sneaky miners were actually just after real estate and
were hiding their land grab within the 1872 Mining Act, or so
the California Supreme Court believes.” Bob told me.
Rocky stared incredulously across the bar and poured two
more Old Tailings for us. Old Tailings is supposed to be an IPA
but we think it’s just the beer some local guy is brewing in his
basement not realizing tailings are the things we throw
away.
“So the highest court in California just interpreted the 1872
Mining Law to have nothing to do with mining?” Rocky
asked.
not mining.”
“That pretty much sums it up.” Bob said.
“I don’t think they’ve seen Starvation Creek.” I said. “It’s not
exactly Park Place.”
“Now that were owners of worthless real estate what do we
do with it?” Bob asked.
“You’re always missing the angle on these scams. Now that
the California Supreme Court says all we own is some real
estate, which just happens to be waterfront, I’d say our
future is looking pretty bright.”
“Are you kidding, we’ve got a court decision which says the
mining law isn’t about mining and we’ve got an
environmental impact report which says if we start an engine
we’ll frighten to death endangered birds. So where’s the
angle.” He said with just a noticeable rise in blood pressure.
“That’s right. It was apparently an Orwellian attempt at
double speak where you title it one thing, but it’s really
another.” Bob sighed.
I could see a look of concern on Rocky’s face as he wondered
if maybe he’d be liable for a heart attack in his bar since he
didn’t have a government mandated defibrillator on site.
Rocky’s plan had always been to drag the person outside and
put them in their car so the auto insurance company would
have to deal with it. I could see the logic in this.
“You sure would have thought someone would have caught
on to this scam, let’s say, 100 years ago or so.” I added.
“What does saving whales, saving birds, environmental
groups and social programs all have in common.” I replied.
“We can have the mining claim, but we can’t mine it.” Bob
said.
“They all take money from taxpayers and give it to causes
with no results?” Bob asked.
“We may have a small problem.” I mused.
“No, they’re all exempt from CEQA. You see we’ve been
looking at this the wrong way. The California Supreme Court
says we’re not miners, we’re real estate owners.”
“Do you think?” Bob responded.
“In the 1970’s a whole bunch of dope smoking hippies
decided a mining claim was a great place to camp a
Volkswagen bus and start a commune so Congress passed
another law called the Federal Lands Management Policy Act
which said the only thing you can do on a mining claim is
actually mine.” I said.
“Owners of worthless real estate in the bottom of a poison
oak infested canyon which we can’t mine.” Bob said
dejectedly.
“No, owners of prime real estate to build low income
housing for unwed transgendered mothers and children
which is exempt from CEQA.”
“You’ve been reading mining law?” Bob asked me.
“No, but back in the 90’s the Forest Service and I had a small
disagreement over how long I could park my trailer next to
the Yuba River, they won, I lost.” I said.
“So,” Rocky said, “Let me see if I got this right. Congress
passes a law called the 1872 Mining Act, which isn’t really
about mining, it’s about real estate and 150 years later the
California Supreme Court finally catches on to this scam and
says you can have a mining claim, but you can’t mine it. The
Forest Service says you can’t have a mining claim if you’re
“What makes you think the State would approve that?” Bob says.
“They wouldn’t dare harm mothers and children.” I smiled.
“Can’t beat that argument.” Rock said and set up two more beers.
15
Save the
Date!
The 4th Annual Gathering of Miners
Indian Valley Outpost and Resort (Yuba River)
September 24th – 25th, 2016 
Saturday 24th – Bring your used mining equipment for a mining equipment swap meet. Dredges, highbankers, parts, hardrock mining, trommels etc.

On Site Claims on the North Fork of the Yuba and nearby claims to work during both days

We’ll be raffling off a placer mining claim

Camping on site and nearby
All Proceeds to Fund our Efforts to Restore our Mining Rights
Camping: You can make reservations at Indian Valley Resort at www.indianvalleyoutpostresort.com There is public camping in nearby campgrounds. If you prefer to stay in a cabin you can reserve a cabin at the Indian Valley Outpost, if they are full you can get a room at the Downieville River Inn (see ad at end of newsletter) and there are camping cabins at The Lure Resort east of Downieville.
Public Campgrounds include: Lower and Upper Carton Campground; Ramshorn Campground; Rocky Rest; Indian Valley and Fiddle Creek. We recommend you make reservations as Yuba River Campgrounds fill up on weekends.
If you plan on coming, please support the Indian Valley Campground by staying there. We plan on having a BBQ in the evening, so by staying at Indian Valley Outpost you can join the rest of us as we sit around the fire, have a few beers and talk about gold and freedom.
16
Mining Claim Update
The other day we were in the County Recorder’s office doing
some claims research and an elderly lady walked in with a
problem. It was a problem we’d heard many times.
The biggest problem is people don’t do their research. They
merely see something was closed but don’t take the important
next step of ensuring there isn’t an existing valid claim there.
Someone had overfiled her legally filed claim she’d had for forty
years and then sold it to someone for $30,000. She asked the
recorder what they could do, and they could do nothing. They
merely record.
In some areas such as Alleghany claims date back to the 1800’s
and we’ve seen as many as three invalid claims filed over the top
of the legally filed claim.
We did some quick research for her and gave her all the
information on who had filed over it, and who bought it. The
person who bought it is likely out his money but at the end of
the day it becomes a civil matter for a judge.
The overfiling happened many months ago and she wasn’t aware
of it.
We’ve seen this many times on the Yuba River so be careful
when you’re filing, or buying a claim on one of the popular
rivers. Ensure you do extensive research. Claims on the Yuba go
back a long ways and people don’t often abandon them.
Please, do your research and file correctly. This doesn’t prevent
someone overfiling, but it sure helps.
We knew we had the capability to let people know when
someone had filed a new claim near one of their existing claims
and we decided to go ahead and do this for WMA members.
File clear, legible documents of your boundaries. If you file, in
California, using the Public Land Survey System, then you need
only monument the claim but the corners may be described by
the PLSS.
Starting tomorrow, and every month after that we’ll send you an
automatic email which will tell you if someone has filed a claim
near one of your claims, or not.
If you use metes and bounds (gulch claim or lode) you must mark
your boundaries. If you’re just paper filing you’re not doing
anyone any favors and not complying with the law.
Keep in mind this only tells you whether a new claim has been
filed, it doesn’t tell you whether it conflicts with your claim, but
it does give you a heads up.
We have no problem with people locating claims and selling
them. Some people complain they are speculators, but all mining
is speculation. Your digging for something which isn’t visible or
proven in most cases, the very nature of speculation.
The first report will cover the previous year, following reports
will cover only the previous month.
Overfiling a legal claim has always been a problem. With the
proliferation in people selling claims it’s become fairly common
and the Recorders we’ve talked to said it’s a significant
complaint they receive.
Sometimes a claim shows up on LR 2000 as abandoned or
“Closed” and someone jumps in and files on it without doing
their research.
The folks selling claims, when done correctly, provide a valuable
service and we won’t tell you to not buy a claim. Just be careful
and ensure you do your research. Just because they’re selling it
doesn’t mean it’s a valid claim. Ensure you don’t lose your
money.
So what’s the outlook for abandoned claims this year? In general
it looks about normal from what we’re looking at right now. We
expect about 1,500 forfeited claims in California. We need to
double check our data on Oregon as we move into September,
we doubt the drop is that significant.
17
18
Downieville River Inn
When in Downieville, stay where the miners stay at the Downieville River Inn. With room sizes and small cabins to meet your needs you can stay for a night or a month. Conveniently located just steps from the courthouse you can do your claims research or annual filings within minutes. The Inn is located just steps from the Yuba River and includes a heated swimming pool and rooms with kitchenettes for long term stays. Ask for the “Miners Rate” to receive a discount for your room rate.
Call Diane at (530) 289‐3308
19
PARTING SHOTS
Here’s what we love about miners – they are creative and adaptive. Check out these pictures of dredges.
That is just too cool. Dredge manufacturers should pay
attention to what dredgers are doing to improve their
dredges. The dredge to the left is the best paint job
we’ve seen. It’s for sale, by the way. The old triple box
above is painted entirely black. Even Dahlke dredge has
take the cue and begun producing at least the floats in
black.
We believe this solution will go a long ways towards
satisfying the environmentalist complaint that suction
dredges are not aesthetically pleasing on the river.
You’ve got to admit, that little Dahlke is pretty hard to pick out from the rocks. With a little more work it would be near indistinguishable. We think this solves the problem of people complaining about unsightly dredges on the river. Kudos to the people who are taking positive action to improve the scenic view for environmentalists.
20
20 ACRE PLACER CLAIM FOR SALE – SIERRA COUNTY, CA
20 Acre Claim For Sale
Grants Crossing located about 5
miles east of Camptonville near
Highway 49 off Joubert Road.
Looking for a claim where you don’t
need a dredge to still get some
gold? This may be for you. Super
easy access for any type of vehicle.
Four season access as its below the
snow line and camping spots.
This claim is offered at $3,000 OBO. Nice claim for weekend getaways and the potential to find some gold. The area is old hydraulic tailings and the majority of the gold is in the old cobbles, dirt and tailings outside of the creek in the bank. The above picture of sampling is from a few shovels put through a sluice box. $500 of this sale will go to the WMA legal effort.
For more information www.theminingalliance.com
21