helping miners and prospectors

WALDO MINING DISTRICT
P.O. BOX 1574
CAVE JUNCTION, OR 97523

May 23, 2017


Jeffrey B. Wall
Acting Solicitor General
Office of the Solicitor General
950 Pennsylvania Ave. NW
Washington, DC 20530-0001
Jeff Sessions
U.S. Attorney General
U.S. Department of Justice
950 Pennsylvania Ave. NW
Washington, DC 20530-0001
Jeffrey Wood
Assistant Attorney General
U.S. Department of Justice
950 Pennsylvania Ave. NW
Washington, DC 20530-0001


RE: REQUEST FOR REVIEW

ISSUE: CAN STATES PROHIBIT MINING ON
PUBLIC LANDS OPEN TO MINING?


Dear Sirs;

I am writing you today as the President of Oregon’s oldest Mining District, as a small-scale placer gold miner since 1986, and as a concerned citizen. I am not an attorney, nor have I had any legal training; but as one whose livelihood has been under attack since at least the 1990’s, I am familiar with mining under the U.S. Mining Law, federal and state regulations concerning mining, the environment, and the various methods of both underground lode mining and underwater placer mining.

BACKGROUND:

Eight years ago, due in part to the heavy influence of several tax-exempt not-for-profit environmental organizations, California banned, statewide, the most popular, efficient, and environmentally friendly method of small-scale in-stream placer gold mining yet devised; i.e., suction dredge mining. Oregon followed suit upping the ante by banning the use of all motorized small-scale in-stream placer mining equipment (including suction dredge mining and even spoon-fed battery operated devices) in up to 90% of all Oregon gold bearing streams.

Prior to these bans, 1,000s of individuals a year exercised their rights granted under the U.S. Mining Law as a form of part-time supplemental income, and for some their complete livelihood. The bans are destroying the living heritage of the small-scale individual prospector/miner, and costing local rural communities well over $100M a year in lost income from the miners, along with jobs that are lost in the businesses that produced and sold the mining equipment or catered to the miners… (not to mention how many millions of dollars’ worth of gold that is not being recovered).

Besides the negative economic effects (and more importantly); the states are prohibiting the rights of all citizens granted by Congress to free and open exploration, occupation, and purchase of many of the valuable mineral deposits found on the public lands; and doing so in the name of protecting the environment from a hypothetical potential for harm even though to date after dozens of studies (many by federal agencies) not one study has shown a significant detrimental effect that wasn’t mitigated years ago, while some studies have identified real long-term beneficial environmental effects.

Worse of all, if California and Oregon are allowed to prohibit any and all practical methods needed to explore for and recover valuable minerals found in the beds of streams then there is nothing to stop them from prohibiting any form of mining, with any equipment, in any area, for any reason (or no reason at all).

1.

On June 16, 2012, a miner on his mining claim in California (Brandon Rinehart) was charged with two misdemeanors: 1) for possessing a suction dredge within 100 yards of a closed area and; 2) for using a suction dredge without a permit required by California (California stopped issuing permits for suction dredge mining in 2009 – although they still required them). Mr. Rinehart is currently petitioning for an appeal of a decision by the California Supreme Court with the U.S. Supreme Court.

In October of 2015, a coalition of miners in Oregon filed suit against Oregon’s 2013 statute calling for a five year prohibition on all motorized in-stream placer mining within stream segments designated by the state as Essential Salmon Habitat (ESH) beginning January 2, 2016. This case (BOHMKER et.al) is now on appeal in the U.S. 9th Circuit.

In both of these cases, the Obama administration’s U.S. Dept. of Justice filed amicus curiae briefs in support of the states’ prohibitions on mining claiming there was no preemption as the miners are still free to work their claims “by hand”.

REQUEST FOR RECONSIDERATION
OF
U.S. DOJ AMICUS CURIAE BRIEF(S)

RE: AMICUS CURIAE BRIEF(S) OF THE UNITED STATES
IN SUPPORT OF APPELLEES CALIFORNIA & OREGON


In 2009, the State of California placed a statewide moratorium on all suction dredge gold mining (Cal. Stats. 2009, ch. 62), including on lands of the United States open to mining under the U.S. Mining Law of 1872, as amended. (NOTE: See Exhibit 1 for information on suction dredge mining)

On or about August 28. 2015, an amicus curiae brief was filed in the California Supreme Court case by the United States Department of Justice in support of California’s prohibition on the use of suction dredge mining equipment.

In 2013, the State of Oregon passed Senate Bill 838 (SB 838), which among other things calls for a five year moratorium on the use of “all motorized placer mining equipment” used in streams designated by the Oregon Dept. of State Lands as Essential Salmon Habitat (ESH), including on lands of the United States open to mining under the U.S. Mining Law of 1872, as amended, beginning January 2, 2016.

On or about October 21, 2016, an amicus curiae brief was filed in the U.S. 9th Circuit by the United States Department of Justice in support of the State of Oregon’s prohibition on the use of “all motorized in-stream placer mining equipment” in all ESH streams.

* ** *** ** * ** *** ** * ** *** ** *

I am writing you today to ask that you look into both of these cases, and in particular the amicus briefs submitted by the U.S. DOJ with the hope that you will recognize what appears to me to be an amazing misunderstanding of the Mining Law by the DOJ attorneys responsible for the briefs; and to then repeal or revoke those briefs and replace them with briefs based on the law rather than some twisted or biased view.

In particular, both DOJ amicus briefs argue that: “The Mining Law of 1872 expressly requires compliance with all state and local laws that do not conflict with federal law. 30 U.S.C. §§ 22, 26.” and “The Mining Law of 1872 anticipates the possibility of state regulation of mining activity on federal lands. Section 2 of the Mining Law of 1872, which requires that federal lands be “free and open” to exploration and mining, also requires that all mining occur “under regulations prescribed by law.” 30 U.S.C. § 22.” (emphasis added)

I would argue that the phrase “regulations prescribed by law” refers to regulations on how a non-citizen declares intent to become a citizen; or at the most refers to the mineral deposits being free and open to exploration and purchase, and the lands in which they are found to occupation and purchase. DOJ et.al believes that “…“regulations prescribed by law” is a broader statement than that, and is more sensibly read to include state laws as well. See O’Donnell v. Glenn, 19 P. 302, 306 (Mont. 1888)”. (A review of O’Donnell v. Glenn shows that the case dealt (solely) with Montana statutes governing title and possessory rights of land claimed by both parties and should not be relevant here).

In other words, DOJ et.al believes the phrase gives states authority over the subject matter of § 22 – even though the word “state” is never used in § 22. Below is 30 USC § 22:

Lands open to purchase by citizens

Except as otherwise provided, all valuable mineral deposits in lands belonging to the United States, both surveyed and unsurveyed, shall be free and open to exploration and purchase, and the lands in which they are found to occupation and purchase, by citizens of the United States and those who have declared their intention to become such, under regulations prescribed by law, and according 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.
(30 USC §22) (emphasis added)

“Except as otherwise provided…” refers to lands that are no longer “public lands” (i.e.; public lands are lands of the United States open to appropriation – such as a location made under the Mining Law, or Homesteading Acts). Wilderness areas, Monuments, administrative sites, other special areas, state, county and private lands are not “public lands”.

“…all valuable mineral deposits in lands belonging to the United States…” means exactly what it says, “ALL” deposits in the (public/unappropriated) lands of the United States (including those found underwater); and does not mention States (or state land) at all.

“…shall be free and open to exploration and purchase, and the lands in which they are found to occupation and purchase,…” is the Congressional grant of all valuable mineral deposits in lands belonging to the United States requiring that they be (i.e.; “shall be”) “free and open” to exploration, occupation & purchase of those deposits (and lands).

“…by citizens of the United States and those who have declared their intention to become such, under regulations prescribed by law,..”. This speaks to who may exercise the grant, i.e.; all “citizens”, and those who have declared intent to gain citizenship, under regulations prescribed by law. These regulations would deal with how one becomes a U.S. Citizen – which of course would be totally under federal control. With absolutely no mention or even hint of the role of states in § 22 the section closes with:

“…and according 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.”

30 USC is a federal law, and § 22 deals with the disposal of valuable mineral deposits in lands belonging to the United States to citizens of the United States (and others), under regulations prescribed by law, and according to customs and rules of the miners themselves. NOWHERE in § 22 are “states” mentioned or even hinted at.

EVEN IF the position of California, Oregon, a bunch of environmental socialist law professors and the U.S. DOJ is correct (and they are not), then the phrase “under regulations prescribed by law” would grant the states authority over everything (all or nothing) in § 22– i.e.; deciding what lands of the United States, and what deposits, might be available; and to whom and under what conditions… besides setting requirements to become a U.S. Citizen. Constitutionally, this is absurd. ONLY Congress has the authority to dispose of the lands of the United States… and ONLY Congress has the authority to close or withdraw lands of the United States to mining (authority is delegated to the Sec. Interior but Congress retains the ultimate authority). AND, I ASSUME, ONLY THE UNITED STATES HAS THE AUTHORITY TO REGULATE HOW TO BECOME A U.S. CITIZEN.

I fail to see how 30 USC § 22 gives any authority what-so ever to anyone but the United States, and (in a limited form) the various mining districts. I find it troubling that something that appears to me to be so simple can be misunderstood by so many people much more educated than I; and scary if they are doing this with full knowledge that they are wrong but believe they can win, and should win, at any cost (i.e.; the ends justify the means). Or… I’m an Idiot.

4.

The DOJ amicus briefs also mention 30 USC § 26 as giving states authority to regulate mining. To more fully understand how wrong they are look at 30 USC § 26:

Locators' rights of possession and enjoyment

The locators of all mining locations made on any mineral vein, lode, or ledge, situated on the public domain, their heirs and assigns, where no adverse claim existed on the 10th day of May 1872 so long as they comply with the laws of the United States, and with State, territorial, and local regulations not in conflict with the laws of the United States governing their possessory title, shall have the exclusive right of possession and enjoyment of all the surface included within the lines of their locations… (30 USC §26) (emphasis added)

At least here (in § 26) “state, territorial, and local regulations” are mentioned… but ONLY those regulations “governing their possessory title” (and as long as they are not in conflict with the laws of the United States). 30 USC § 26 speaks to the “Locators’ rights of possession and enjoyment” and says nothing about the regulation of mining.

In fact, it says that those (locators) that comply with all the laws and regulations that govern the possessory title (i.e.; Made a Discovery, Posted the Notice, Staked the claim (marked boundaries if required), and Recorded the claim in the county and with BLM within the prescribed time -- and kept all paperwork and fees up to date as required by both federal and state laws) “shall have” (“shall” means mandatory, no exceptions) “…the exclusive right of possession and enjoyment of all the surface…”.

By granting “the exclusive right of possession and enjoyment” the Mining Law itself rules out regulation of the mining itself. The rights granted cannot be “exclusive” if they can be whittled away by regulations.

Then there’s the Congressional Acts of 1955 which amended the Mining Law giving the federal land management agencies (U.S. Forest Service and BLM) the authority to “manage” the non-mineral surface resources found on mining claims, but only with the provision that such management may not materially endanger or interfere with mining or prospecting (30 USC §612(b)). It makes no sense that Congress would deny the federal land management agencies authority to endanger or interfere with mining and yet allow the states to do so.

Furthermore, “if” the DOJ (et.al) is correct (in that 30 USC § 22 gives states authority over mining), then 30 USC § 26 would be superfluous as such compliance would already be required. That § 22 fails to even mention “states”, and that § 26 exists and requires compliance with (only the) laws and regulations of the states that govern the possessory title, and that such compliance (with all laws and regulations governing the possessory title) grants “exclusive rights” (of possession AND ENJOYMENT) means that Congress had absolutely no intent to allow states, or anyone else (with the possible exception of the various mining districts), to regulate the mining itself. In the 1870’s I would hazard to guess that no one in their right mind, not even Congress, ever dreamed of telling miners how to mine (or with what equipment).

Most, if not all of the other arguments given to support the prohibitions are just as much a stretch of the imagination. Oregon claims SB 838 doesn’t prohibit mining – people are still free to mine using non-motorized methods. The problem with this is, what if the deposits are ONLY accessible using motorized equipment? (Try shoveling your way to bedrock in 6 ft. of water and 4 ft. of OB to bedrock…)

5.

Oregon claims laws like SB 838 are reasonable environmental regulation, and yet such regulation (as allowed by the U.S. Supreme Court in GRANITE ROCK v CALIFORNIA COASTAL COMMISSION) is supposed to be reasonable, necessary, and standards based. Flat-out banning the use of all motorized equipment or all motorized suction dredges is not “standards based” regulation (let alone reasonable or necessary). There is no measureable limit or line that cannot be exceeded. Instead, they ban the equipment instead of regulating the effects (i.e.; setting limits on turbidity would be standard based – prohibiting the activity that creates the turbidity is land use planning, which was denied by the Granite Rock court).

VIOLATIONS OF THE ADMISSSION’S ACT(S)

If all the above wasn’t enough, California’s ban on suction dredge mining and Oregon’s ban on all motorized in-stream mining violates the Admissions Acts agreed to by both states at the time of admission to the union.

Both states agreed to: “… never interfere with the primary disposal of the soil within the same by the United States …” (§4 (5th) Oregon Admissions Acts, Approved by Oregon June 3, 1859).

The U.S. Mining Law is a land disposal law. Among the conditions that must be satisfied before a citizen miner can gain title to lands of the United States it must be shown that there was/is a valid discovery, that all discovery work was performed, the location properly recorded, paperwork and fees up-to-date, and that the claim can be worked at a profit.

In California and Oregon alone, there are 1,000’s of placer mining claims located based on discoveries of deposits of valuable minerals (gold in this case) found underwater in the beds of present day streams and rivers. Most of these deposits require the use of motorized equipment just to discover, let alone mine at a profit.

With the bans in place, the discoveries on many of these claims is in jeopardy because if it can’t be worked at a profit, then there is no discovery and the claim is invalid. In effect, this would be a taking of monumental proportions.

Banning the use of the only practical method to explore for these in-stream deposits acts as a de facto Mineral Withdrawal as if the only way to find the deposits is with a suction dredge and suction dredges are prohibited, then the deposit may as well be on the moon.

REQUESTS: For these and other reasons, I respectfully request that the United States re-examine its position in both the RINEHART and BOHMKER cases with the hope that the United States will see that their earlier position is wrong, that the rights of the miners are being wrongfully trampled.

I understand that the Solicitor General has been asked by the Supreme Court about hearing the RINEHART case. I would ask that the United States request that the case be heard.

I would also ask that the United States take immediate action in the BOHMKER case pending in the U.S. 9th Circuit by petitioning that court to submit an amended brief before a hearing is scheduled (which could be any day now).

6.

I apologize for the length of this letter, but mining law, as applied to the Individual prospector and miner is little understood by most in today’s world – and yet, the law is still the law and must be upheld; and those rights granted by the United States to the citizens of the United States need to be protected by the United States.

I want to help Make America Great Again. Mining is the base industry for society, all wealth comes from the ground. Over-zealous environmental regulations have all but destroyed what once was the thriving economic force that built much of this nation . . . and now they’re after us little people . . . and we need your help!

Please feel free to contact me for any reason. The summer mining season is just days away and I’m forced to either starve (by not mining), or mine and feed my family at the risk of the Wrath of Oregon.

SUCTION DREDGE MINING EXPLANATION



A suction dredge (SD) is (usually) an underwater vacuum that sucks up streambed material and delivers it via a hose to a sluice box floating on the surface. SDs are rated by the size of suction hose used, i.e.; a 2” dredge has a suction hose of 2” ID. An 8” SD has a hose 8” ID.

The most common size used is a 4 inch dredge (6.5 hp). The SDs are (usually) powered by a typical lawnmower engine from <5hp to 16hp or more.

Typically, the engine on the dredge is mounted on a small floatation platform along with the sluice box. The engine drives a water pump, which in turn delivers high-pressure water to a venturi tube which creates the suction; and on all but the smallest dredges, the engine also drives a small air-compressor which delivers breathing air to the miner who (usually) works underwater (up to 20+ ft.).

USE: Hanging off the front of the dredge is 15-20+ feet of flexible suction hose. (On a 4” SD the hose is 4 inch ID).

At the intake end of the hose is a nozzle with a restrictor ring to help keep larger rocks from entering and plugging the hose. The miner, working in and underwater sucks up the small rocks, gravels, sand, and hopefully gold with the hose, and moves all oversize rocks out of the way by hand. The streambed material is sucked up the suction hose and is delivered to the floating sluice box where it and the water flow down the box over a set of riffles in the bottom of the sluice designed to catch heavier materials such as lead and gold. The water and material (minus the gold) fall off the back of the sluice back into the stream.

The modern SD is a combination of the excavation system (suction), transportation system (via hose), and recovery system (sluice box) all in one highly portable unit. The typical 4” SD can move and process on average about 1/2 cubic yards per hour… about as much as a man can shovel in the same time. However, the goal of most in-stream placer gold miners is to reach, and clean, the underlying bedrock (where most of the gold usually is). Bedrock in a stream can be buried anywhere from 0 ft. to 10, 20 or more feet of rocks, gravel, sand… and water.

The main differences (between shoveling and dredging) is that by using suction, the miner can recover gold that is impossible to reach with a shovel in water deeper than 2-3 feet without somehow draining the work area, and; the dredge will suck up “all” the gold including the microscopic gold – whereas small pieces of gold cannot be shoveled off the underlying bedrock, nor can the shovel clean gold out of cracks in the bedrock.

A sluice is a sluice, regardless of whether it is floating or stationary, in-stream or on-shore, and regardless of how the material is delivered to it (whether by hand or motorized methods). They all work the same based on principles developed more than 140 years ago.

Q: Which does a better job cleaning your old wooden floor: a broom;
or a vacuum cleaner?

Oregon’s prohibition goes further than California’s ban on suction dredge mining in that Oregon is prohibiting “all motorized placer mining equipment” used in streams designated as Essential Salmon Habitat; which includes suction dredges, along with high-bankers, powered sluice boxes, winches, and even small “spoon fed” battery powered concentrating devices.
I thank you for your time and consideration of this matter;

Respectfully submitted by,

Tom Kitchar
President, Waldo Mining District
P.O. Box 1574
Cave Junction, OR 97523

mythicalmining@cavenet.com

CC:

Donald Trump
President of the United States
The White House
1600 Pennsylvania Ave. NW
Washington, DC 20500