These are comments for the State of Washington on the new proposed suction dredging regulations with the Wash. Dept of Fish and Game and the Commissioners
PUBLIC LANDS FOR THE PEOPLE Inc.
7194 Conejo Dr.
San Bernardino, CA 92404
WALDO MINING DISTRICT
P.O. Box 1574
Cave Junction, OR 97523
September 19, 2008
Washington Department Fish and Wildlife
600 Capital Way N.
Olympia, Washington 98501-1091
RE: Joint Aquatic Resource Permit Application (JARPA) and Hydraulic Project Approval (HPA)
These are the legal comments by and for “Public Lands for the People” Inc. (PLP), a 501 C-3 non-profit organization, its members, and for Gerald Hobbs, President of PLP and as an individual; and by and for the “Waldo Mining District” (WMD), a bona fide mining district established in 1852 in SW Oregon and as authorized by the 1872 U.S. Mining Law, its many members (many of whom are citizens of the State of Washington), and for Tom Kitchar, President of the WMD and as an individual; on the proposed WDFW, JARPA and HPA, and Accumulated Thermal Unit, (Temperature Unit), (TU) Time Frames, for Suction Dredging in the State of Washington.
Dear Ms. Wood
Public Lands for the People Inc. (PLP), the Waldo Mining District, their members, and ourselves, appreciate this opportunity to participate in the comment process for the Washington Department of Fish and Wildlife (WDFW) in regards to the above referenced proposed actions. PLP has approximately 40,000 constituent members, many of whom are citizens of the State of Washington. PLP’s membership also includes such organizations as the Washington Resources Coalition (WRC), Washington Prospectors and Miners Association (WPMA), Washington Bedrock Prospectors (BRP) and Northwest Mineral Prospectors (NWMPC), and their members. The WMD has approximately 150 members, many of whom are citizens of the state of Washington.
All of the above organizations and many of their members are Citizens of the State of Washington. They are also Citizens of the United States of America, and as such, have rights conveyed to them under Federal Statutes and the Constitution of the United States. Among those Statutes is the Mining Law of 1872, covered under 30 U.S.C.A. 21 thru 54, and along with other laws; it grants a right to the public to free and open access to the public lands not reserved; for the purposes of exploration for, the claiming of, and the mining of valuable minerals. Pursuant to Federal Law, “…the locator of a mining claim has a possessory title thereto and the right to the exclusive possession and enjoyment thereof, and this includes the right to work the claim, to extract the minerals therefrom, the right to the exclusive property in such mineral as well as the right to defend his possession.” (30 USC 22.70); and “Unpatented mining claims are "property" in the highest sense of such term…” (30 USC 26.94).
We respectfully request that the WDFW et al., in the drafting and/or implementing of any restrictions what-so-ever on any and all prospecting and mining activities that are being performed under the grants of the U.S. Mining Laws of 1866 and 1872, please keep in mind that by the grants themselves within the 1866 and 1872 Mining Laws, miners and prospectors have very unique and specific “rights” entertained by no other members of the public. The U.S. Mining Laws not only grant the claim owner a right to the minerals, but they also grant the right to mine those minerals. Any unnecessary or unreasonable restriction or prohibition on legitimate mining activities would constitute a “taking”.
I. We respectfully believe that WDFW has created the Thermal, Temperature Unit (TU) Time Frames for suction dredging out of no where, and are attempting to shove them down the Mineral Estate Grantees (mining claim owners) throats. It matters not to the WDFW that they have no concrete science or authority to support their position to regulate suction dredge activity on the rivers at any time they arbitrarily choose. WDFW attempts this by applying laboratory (hatchery) study for TU Control time frames to fish in rivers of the wild.
WDFW ignores the comments from the Mineral Estate Grantees, the prospectors, the Public, the Washington State Attorney General’s Opinion, and instead relies on science that is speculative at best. WDFW ignores at least one other Washington State Agency Study about the TU’s, i.e.; The Washington Department of Ecology, which said the following about using water Temperature Unit Studies in there application to natural rivers conditions:
Washington Department of Ecology
Evaluating Standards for Protecting Aquatic Life in Washington’s Surface Water Quality Standards Temperature Criteria (2002)
(B) General Thoughts and Observations
(i) “Adjusting Laboratory Data for application to Natural Waters”
“Laboratory tests do not represent the full range of conditions that an organism will face in the natural environment. In most laboratory tests fish are exposed to a constant temperature environment, while in natural waters the temperature continuously fluctuates during each day., between days, and in seasonal trends of spring warming and fall cooling. In natural waters, fish must actively maintain position and seek food and shelter in currents of the rivers, succeed in the face of inter – and intra species competition for both food and shelter, avoid predation, and resist disease. In laboratory studies, however, the fish are often in test chambers without substantial currents, fed food in pellet form, treated to prevent disease, and seldom need to compete or avoid predation. On the other hand in Laboratory tests, fish are often crowded into very small unnatural spaces, even styrofoam cups, forced to perform using electrical stimulation or prodding, subjected to laminar artificial flows, and often fed unusual rations with large time intervals of starvation. Because of the differences between laboratory conditions and the environmental conditions that fish face in the natural world, we must use caution in how we apply laboratory-derived data in setting ambient water criteria. We must insure that the temperature regimes used in the laboratory tests are considered in any application to natural streams.” (emphasis added)
WDFW’s, JARPA seasonal time frames for suction dredging are non scientific, are illegal and out of control because it sets the seasons for the suction dredge miners on their Mineral Estates by using Accumulated Thermal Unit control (TU). This control on seasons allowing suction dredge mining to the winter months, “only”, can not legally be applied for several obvious reasons which will be explained later in comments. If, the JARPA time frames are changed with proper science applied, most of the legal problems will disappear.
The JARPA Time Frames torture a miner into a needless bureaucratic synopsis of a prohibitory HPA Permit. WDFW feels that they have the authority to deny the Mineral Estate Grantee the opportunity to suction dredge as the grantee requires for removing his minerals, with the JARPA or HPA permit requirements. This puts the miner in a catch 22 by rendering his mineral estate worthless. PLP will address this issue below as well as the prohibitory JARPA and HPA violations
WDFW have observed the laboratory conditions on the affects of TU’s on fish but have not observed or compared those conditions with the natural environment that the fish actually live in. This is not science but speculation and is opposite of the requirements for all state and federal environmental law and Mining Law. In WDFW’s stubborn stand on the regulation of seasons in JARPA for suction dredging through TU’s, they ignore comparable science, and also ignore State and Federal law and Constitutional rights as addressed below.
II. The U.S. Mining Laws of 1866 and 1872 do not award a mere privilege but instead they grant the right to real property, the mining claim holder is a “Mineral Estate Grantee”. The right to go upon the open public lands freely for the purpose of prospecting, discovery, exploration, claiming of the minerals upon that land, mining that land for minerals and taking that land to patent. In other words they get to make a living. The Mineral Estate Grantee has accepted a grant from the United States Government and is executing that grant (Mining Acts of 1866 and 1872) through the act of prospecting, locating, filing and mining the minerals located under that grant.
To illustrate this concept the Supreme Court has said:
"A contract is a compact between two or more parties, and is either executory or executed. An executory contract is one in which a party binds himself to do, or not to do, a particular thing;...." "A contract executed is one in which the object [10 U.S. 87, 137] of contract is performed; and this, says Blackstone, differs in nothing from a grant...." "A contract executed, as well as one which is executory, contains obligations binding on the parties. A grant, in its own nature, amounts to an extinguishment of the right of the grantor, and implies a contract not to reassert that right. A party is, therefore, always estopped by his own grant." Fletcher v. Peck, 10 U.S. 87 (1810) (emphasis added)
Fulfilling this Mineral Estate Grant by the Grantee is sometimes a difficult task, especially when Mother Nature rears her ugly head in the winter months. The snow, cold water, rains and high water prohibit this activity during months like November, December, January, February and March. Consequently, during these months, Mother Nature prohibits the Mineral Estate Grantee from acquiring his property (the Minerals) under the grant, for as much as half the year.
Like the state or federal agencies and departments, the Mineral Estate Grantee has no power or method to control or hold Mother Nature responsible for prohibiting any activity that it may affect. In essence, Mother Nature violates the Constitution, both the 5th Amendment (taking without compensation), and the 14th Amendment (for not giving due process) and by prohibiting the Mineral Estate Grantee from acquiring his minerals during these weathered periods. However, WDFW does not have this same exemption to prohibit the Mineral Estate Grantee.
The Public Lands cannot be “free and open” to exploration if the historical means of use by prospectors and miners can be prohibited by WDFW. The WDFW has the power to reasonably regulate activities not incident to mining upon the Public Lands, but those same regulations fail when they operate to prohibit the customary usage by legitimate prospectors and miners on valid mining claims or in pursuit of such a claim. These proposed regulatory amendments are prohibitive and not merely regulatory in fundamental character and, therefore, are unlawful as proposed. We call your attention to:
South Dakota Mining Ass., inc. vs. Lawrence County, (155 F.3d 1005)
“The Supreme Court has set forth the analysis we must apply to determine if a state law is preempted by federal law: State law can be pre empted in either of two general ways. If Congress evidences an intent to occupy a given field, any state law falling within that field is pre empted. If Congress has not entirely displaced state regulation over the matter in question, state law is still pre empted to the extent it actually conflicts with federal law, that is, when it is impossible to comply with both state and federal law, or where the state law stands as an obstacle to the accomplishment of the full purposes and objectives of Congress. A local government cannot prohibit a lawful use of the sovereign's land that the superior sovereign itself permits and encourages. To do so offends both the Property Clause and the Supremacy Clause of the federal Constitution. The ordinance is prohibitory, not regulatory, in its fundamental character.” (emphasis added)
For the WDFW and or the State of Washington to continue to attempt to regulate suction dredge mining seasons through the JARPA and the HPA time lines of an unscientific TU Time Frames is a:
Violation of the Mining Act (30 U.S.C.A. § 22)
30 U.S.C.A. § 22 clearly states: “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”. (emphasis added)
With this proposal, it appears as though the WDFW, in their infinite wisdom have concocted a plan to effectively close many of the rivers and streams in the State of Washington from suction dredge mining altogether without creating a taking of the miner’s mineral estate, and without violating the Constitution.
It’s like some one or some group within the WDFW (that has an agenda to prohibit suction dredge mining, or possibly the agency as a whole) said to itself: “All we have to do is create the suction dredging open time frames (seasons) concurrent with the winter months, where Mother Nature will not allow them to suction dredge because of the weather conditions, and then close the rest of the year to suction dredging.”
However, for WDFW to disallow the suction dredging to the Mineral Estate Grantee during those months that Mother Nature has left open, the agency creates a full time prohibition for the Grantee to acquire his minerals and thusly there is a taking of that Grantee’s property (Mineral Ownership) without compensation.
III. Violation of National Mineral Policy Act (30 U.S.C.A. § 21(a))
30 U.S.C.A. § 21(a) clearly states:
“The Congress declares that it is the continuing policy of the Federal Government in the national interest to foster and encourage private enterprise in (1) the development of economically sound and stable domestic mining, minerals, metal and mineral reclamation industries, (2) the orderly and economic development of domestic mineral resources, reserves, and reclamation of metals and minerals to help assure satisfaction of industrial, security and environmental needs, (3) mining, mineral, and metallurgical research, including the use and recycling of scrap to promote the wise and efficient use of our natural and reclaimable mineral resources, and (4) the study and development of methods for the disposal, control, and reclamation of mineral waste products, and the reclamation of mined land, so as to lessen any adverse impact of mineral extraction and processing upon the physical environment that may result from mining or mineral activities.” (emphasis added)
The WDFW cannot “foster and encourage” domestic mining if they use regulations that have a prohibitive, hostile and chilling effect. It is very troubling to see the WDFW continue to use general prohibitions in another futile attempt to supplant the power of Congress. The WDFW cannot prohibit that which Congress expressly authorized by the Mining Acts. Nor can the WDFW effectively repeal said mining law through the use of general prohibitions or regulation. In other words, the WDFW nor the State of Washington can not legally prohibit that which Congress authorized under the Mining Act, which in its self is a “right of self-initiation” under said act (see “The Mining Law of 1872: A Legal and Historical Analysis by Steven G. Barringer, Esq. 1989). No re-authorization of those rights can be given by the WDFW, absent a specific act of Congress with the consent of the Mineral Estate Grantee.
IV. WDFW is violation of the Supremacy Clause, Property Clause and the Commerce Clause of the United States.
“This Constitution, and the Laws of the United States which shall be made in Pursuance thereof; and all Treaties made, or which shall be made, under the authority of the United States, shall be the supreme Law of the land; and the Judges in every State shall be bound thereby, anything in the Constitution or Laws of any State to the Contrary notwithstanding.”
595 But most important of all there was the development of, or more accurately the return to, 596 the rationales by which manufacturing, 597 mining, 598 business transactions, 599 and the like, which are antecedent to or subsequent to a move across state lines, are conceived to be part of an integrated commercial whole and therefore subject to the reach of the commerce power.
Today, the Supreme Court said that "we do not have to consider that point" because the hiring of seven out-of-state employees and the purchase of supplies from Los Angeles showed that the mine was "engaged in commerce."
Mining equipment, vehicles, fuel from out of state, and interstate travel and out of state claim owners all have an effect on the overall economy of the United States. WDFW must recognize these issues. Along with the fact that federal funding that was received for all or parts of the study and environmental process, make them no less than a welfare recipient and subservient to uphold the laws of the donor of the grant. In this case the laws of the United States.
Funding for part or all of this project is federal funding and in accepting this federal funding, WDFW in doing so, have committed themselves to being under direction and obligation to follow federal law. If Federal funds are enjoyed by the WDFW to do part, or all of this project they can not be inconsistent with Federal Law. And certainly WDFW can not come to a conclusion that they can deny a mining project for any reason, that of which even the Federal Government can not deny.
WDFW now states that they are not prohibiting the Grantee from taking his mineral because he has an opportunity to apply for an HPA permit, but also adds that they have the ability to deny that HPA permit. To deny for any reason is a taking without compensation and WDFW does not have the ability to cover all of those applications for an HPA, especially under the threat of denial. WDFW has shown in the past 4 or 5 months that they do not have the ability address all (i.e.; the sheer numbers) of the permits. In this proposal, WDFW has put a totally unreasonable and unnecessary burden on themselves, the Grantee, the Department, and the State of Washington. A burden that neither the WDFW nor the Grantee can comply with, with any prudence or effectiveness.
V. Violation of Multiple-Surface Use Act (30 U.S.C.A. § 612(b) & (615), 612(b) clearly states:
“Rights under any mining claim hereafter located under the mining laws of the United States shall be subject, prior to issuance of patent therefore, to the right of the United States to manage and dispose of the vegetative surface resources thereof and to manage other surface resources thereof (except mineral deposits subject to location under the mining laws of the United States). Any such mining claim shall also be subject, prior to issuance of patent therefore, to the right of the United States, its permittees, and licensees, to use so much of the surface thereof as may be necessary for such purposes or for access to adjacent land: Provided, however, That any use of the surface of any such mining claim by the United States, its permittees or licensees, shall be such as not to endanger or materially interfere with prospecting, mining or processing operations or uses reasonably incident thereto…” (emphasis added)
If the “United States” themselves are prohibited from “any use” of the surface of a mining claim (including so-called protection of fish) that endangers or materially interferes “…with prospecting, mining or processing operations or uses reasonably incident thereto…”, then there is no legal way that WDFW can “endanger or materially interfere…”.
VI. The WDFW has stated that they will issue the HPA permits for one year, or possibly five years. PLP & WMD respectfully asks, “What prudent man would go into a business that requires expending the time for education, the cost for that education, cost to buy or claim that business, the cost of acquiring the equipment for that business without assuring him self an opportunity to make that business his lifetime goal for success and livelihood for himself and his family?”
When a party decides to go in business whether it be a store or mining business, they have crucial investments. If the grantee applies and receives a license or a permit it should be protected as long as his activity is legal. It should be good until the grantee decides to make some major change that would affect conditions of that license or permit or grant. They should be guaranteed to work under that license or permit or grant. The Mineral Estate Grantee should be able to expect the same benefit that any other businessman would. Especially since the Grant is just that, a grant (contract) and not a licensed or a permitted activity but a right that is not discretionary. The Grantee has a contract with the Federal Government to do business, not just a maybe, and should not have to re-apply in one or five years. He should be under the Grandfather clause for his own protection.
A Mineral Estate Grantee, by law, has even more right to do business because he is a property owner in the truest sense, he owns the minerals. For WDFW to prohibit the use of that property without compensation is a Constitutional violation. For WDFW to take the ability for that Grantee to acquire his property (minerals), either by regulation or other means is not acceptable under the law or the U.S Constitution. The Grantee is afforded Due Process through a Mineral Examination. The Grantee is not mandated to do that Mineral Examination to determine if that Mineral Estate is mineral in character or to acquire the right to mine that Estate. The challenge of validity is the function of the Bureau of Land Management (BLM). Before that Estate can be null and void, the government must afford the due process. WDFW does not offer that Mineral Estate Grantee due process when they can violate the Grantee’s due process by denial of an HPA and torturing the Grantee into an appeal process.
Once an HPA is issued it should be for life, unless the operation is changed to go outside of the original HPA Contract, and only then if the operation is making a very significant change, for less change it should only require and amendment. To do otherwise is to create a material interference for the prospector or Mineral Estate Grantee and the loss of any pre-existing rights granted under the mining laws of 1866 and 1872.
VII. Now, onto another violation of the WDFW. It has come to the attention of PLP & WMD, and their members that one of the requirements for HPA permits issued by the WDFW is that they are requiring that the Grantee (miner, prospector) submit and get an approved “Notice of Intent” (NOI) from the United States Forest Service (USFS). One huge problem with this is that under their own regulations (36 CFR 228.4), the USFS does not “approve” NOIs. Under their own regulations, the USFS has no authority to “require” a NOI, as the initial determination of whether a Plan of Operations (POO) is required is left to the miner, based on the likelihood of a significant surface disturbance. In other words, pursuant to the USFS Mining Regulations found at 36 CFR 228.4, mining activities that do not cause a significant surface disturbance do not need a NOI or a POO. The use of a suction dredge has not been found to cause a significant surface disturbance by the USFS, and therefore to date does not require most suction dredge miners to submit a NOI. How can WDFW require and demand miners obtain something from the USFS that the USFS itself doesn’t (have the authority to) require?
PLP & WMD suggest that the WDFW immediately remove the requirement to get a Notice of Intent from USFS in order to validate or utilize their HPA permit, for the following reasons. (WDFW illustration below)
WDFW, Hydraulic Project Approval, Provisions
“A Notice of Intent (NOI) must be filed with the US Forest Service (USFS) Methlow Valley District Ranger. You will be notified if an operating plan or reclamation bond is required. USFS must consult with the US Fish & wildlife Service under the Endangered Species Act when an action is taken where a listed species or critical habitat is found. The District Ranger may be contacted at 509-996-4004.” (emphasis added)
Even the USFS itself has a problem with enforcing an NOI. The FS Mining Regulations are found under 36 CFR 228, and have no criminal citation remedy because of vagueness in the regulation. The USFS turns to their enforcement regulations, 36 CFR 261.1 (Scope)
Violation of: 36 CFR 261.1 (4)(b)
Nothing in this part shall preclude activities as authorized by the Wilderness Act of 1964 or the U.S. Mining Laws Act of 1872 as amended. (emphasis added)
Also, neither the WDFW nor the Forest Service exercise “discretionary” control over miners (i.e.; only discretionary decisions/permits can be denied). Any questionable regulatory authority the WDFW “may” exercise is non-discretionary in nature as applied to a private actor such as a miner. Examples:
Karuk Tribe v United States Forest Service, NO. C-04-4275 SBA
"Forest Service's acceptance of four notices of intent (NOI) to conduct mining operations in a National Forest, on basis that the operations were not likely to cause a significant disturbance of surface resources, did not constitute a "federal action" within the meaning of the Endangered Species Act (ESA) and thus did not violate its duty under ESA to comply with consultation requirements; miners were all private entities, Service's review
of the NOIs did not amount to an authorization, mining operations were authorized by statute rather than merely permissive, and Service had no discretionary control over the NOIs process. Endangered Species Act of 1973, § 7(a)(2), 16 U.S.C.A. § 1536(a)(2); 50 C.F.R. § § 402.02, 402.03." (emphasis added)
United States vs. McClure (364 F.Supp.2d 1183)
“The Court is mindful that the Forest Service often times has difficulty in attempting to correspond an individual's alleged illegal activity with a specific Part 261 prohibition. The various categories of prohibited activities on National Forest System land as set forth in 36 C.F.R. 261 [Part 261-Prohibitions] are often confusing, and very rarely inclusive.FN7 A miner may be charged under 36 C.F.R. 261 for violating an approved plan of operations, United States v. Doremus, 888 F.2d 630 (9th Cir.1989); 36 C.F.R. 261.10(1), but, may not be charged for failing to submit a “notice of intent” or to file a “plan of operations.” when required to do so.” Lex & Waggener, supra, at 959-60. (emphasis added)
WDFW does not have the authority to demand that the miner/Grantee submit an NOI to USFS, much less does it the have the authority to be judge and jury in the field. WDFW can not put this condition on the HPA permit or any other permit. WDFW does not enforce or interpret Federal Law and to do so is illegal and is tantamount to a denial of an
HPA Permit. WDFW does not have the authority to deny or to hold an HPA Permit hostage for a perceived requirement designated under USFS Mining Regulations. (36 CFR 228). A NOI is not always required for suction dredge mining under Forest Service regulations and even if it were the WDFW still does not have authority to interpret that Federal Regulation or even attempt to enforce it. This argument is to be argued between the Mineral Estate Grantee and the Forest Service as to what the USFS can require or can not require, as stated below in 16 U.S.C. sect. 472.
16 U.S.C.A. Sect. 472
“The Secretary of the Department of Agriculture shall execute or cause to be executed all laws affecting public lands reserved under the provisions of section, 471 (1) of this title or sections supplemental to and amendatory thereof, after such lands have been so reserved, excepting such laws as affect the surveying, prospecting, locating, appropriating, entering, relinquishing, reconveying, certifying, or patenting of any of such lands.” (emphasis added)
VIII. For WDFW to attempt to enforce the TU’s upon the Grantee without the proper science, under the auspices of protecting an endangered threatened or concerned species is arbitrary and capricious and is not even addressed in their environmental report (White Papers). There is no opportunity for the Grantee for self mitigation, only arbitrary and capricious mitigation by WDFW (i.e.; arbitrary and capricious in the sense that the WDFW has no reliable science to support application of a hatchery study to the wild streams and rivers).
The TU’s being addressed outside of the original study (White Paper) is just another arbitrary and capricious attempt by WDFW to wield power they do not have, under the guise of the Endangered Species Act (ESA), and it is shameful and against the law. The U.S. Supreme Court in a recent 2007 Decision has stated:
National Association of Homebuilders v Defenders of Wildlife (2007)
(Cite as: 127 S.Ct. 2518)
“That in Applying Chevron, we defer to the agency’s reasonable interpretation of the ESA sec. 7 (a) (2) as applying only to “actions” in which there is discretionary Federal involvement or control. 50 CFR sec. 402.03. (emphasis added)
“Court will not infer that subsequent statute repeals an earlier enactment, unless the later statute expressly contradicts original act, or unless such a construction is absolutely necessary in order for words of the later statute to have any meaning at all; outside of these limited circumstances, statute dealing with narrow, precise, and specific subject is not submerged by a later enacted statute covering more generalized spectrum.” (emphasis added)
(2) “regulation purporting to apply consultation and no-jeopardy mandates of the Endangered Species Act (ESA), which require federal agencies to consult with other
agencies to ensure that proposed agency action is not likely to jeopardize any endangered or threatened species, only in situations in which there is discretionary federal involvement or control, was reasonable interpretation entitled to deference;” (emphasis added)
No where in the Endangered Species Act does it address the Mining Acts of 1866 or 1872. WDFW “may” (and PLP use’s the word “may” loosely) have authority to regulate suction dredge mining… but Federal Law states that the regulations must be reasonable, necessary, and yet not materially interfere with the Mineral Grant. That means reasonable to the Mineral Estate Grantee (miner) as well as the WDFW. The TU Time Frame, requirements for a Notice of intent (NOI) from the USFS, and the opportunity for WDFW to deny or prohibit the mining operation permit for any reason and to create a paper snafu with the HPA permits are not reasonable to the miner but in fact work to create a prohibition on mining – something even the Federal land management agencies have no authority to do.
Marbled Murrelet, 83 F.3dat 1074
"Finally, pursuant to Marbled Murrelet, the Court finds that Plaintiff's generalized challenge to the "discretionary" nature of the Forest Service's implementation of the NOI review process is insufficient to invoke the ESA. Although, here, the Forest Service engaged in an interactive process with the miners prior to the start of the 2004 mining season, which process involved a discussion of the types of activities that would be considered a significant disturbance of surface resources, this process is most properly considered the type of "advisory" conduct that does not trigger the ESA. Marbled Murrelet, 83 F.3d. at 1074. (emphasis added)
Indeed, as the Ninth Circuit stated in Marbled Murrelet:
“Protection of endangered species would not be enhanced by a rule which would require a federal agency to perform the burdensome procedural tasks mandated by section 7 [of the ESA] simply because it advised or consulted with a private party. Such a rule would be a disincentive for the agency to give such advice or consultation. Moreover, private parties who wanted advice on how to comply with the ESA would be loathe to contact the [agency] for fear *1103 of triggering burdensome bureaucratic procedures. As a result, desirable communication between private entities and federal agencies on how to comply with the ESA would be stifled, and protection of threatened and endangered species would suffer. Id. at 1074-75." (emphasis added)
IX. WDFW has also violated their own State Law and legal opinion, as far as the Washington State Environmental Act (SEPA), by not providing any Alternatives for the TU time frames for suction dredge mining.
SEPA Handbook, 3.3.2 Alternatives
“The EIS evaluates the proposal, the no-action alternative, and other "reasonable alternatives". A reasonable alternative is a feasible alternate course of action that meets the proposal's objective at a lower environmental cost. Reasonable alternatives may be limited to those that an agency with jurisdiction has authority to control either directly or indirectly through the requirement of mitigation. Alternatives are one of the basic building blocks of an EIS. They present options in a meaningful way for decision-makers. The EIS examines all areas of probable significant adverse environmental impact associated with the various alternatives including the no-action alternative and the proposal. Project alternatives might include design alternatives, location options on the site, different operational procedures, various methods of reclamation for ground disturbance, closure options, etc. For public projects, alternative project sites should also be evaluated. For private projects, consideration of off-site alternatives may be limited prohibited except under certain circumstances (see WAC 197-11-440(5)(d)).” (emphasis added)
WDFW has attempted and failed miserably to legally implement the Washington State Environmental Policy Act (SEPA) against the Mineral Estate Grantee. WDFW has not addressed any other alternatives for the Accumulated Thermal Unit restrictions in their regulatory JARPA time frames for suction dredge mining, as required under SEPA.
Upon review of the Washington State Attorney General, “Advisory Memorandum and Recommended Proposed Regulatory or Administrative Actions to Avoid Unconstitutional Takings of Private Property” and in particular, Washington’s Growth Management Act, (RCW 36.70A.370) the following cases referred to that Act and other takings issues:
Pennsylvania Coal Mining Company v. Mahon (260 U.S. 393, 43 S. Ct. 158, 67 L. Ed. 322 (1922). The Court noted that regulatory activity can “go too far”.
Penn Central Transportation Co. v New York City, (438 U.S. 104, 98 S. Ct. 2646, 57 L. ED. 2d 631 (1978). Takings claims are evaluated by examining and balancing three factors (1) The economic impact of the regulatory action on the property; (2) the extent to which legitimate property use expectations exist and have been interfered with; and (3) The extent to which the government has used reasonable means to achieve an important public objective. When undertaking this evaluation, the court must consider the impact on the entire property owner’s interest at stake, not just the portion subjected to the regulation.
WDFW seems oblivious to the possibility of the taking of one’s property with their extreme regulatory position on Thermal Units (TU’s). The Mining claims that the WDFW are attempting to regulate are property in the truest sense. The Minerals are owned by the Mineral Estate Grantee, the party whose name is on the recorded document is that of the Grantee.
The WDFW feels that the regulations that have been adopted for the purpose of a JARPA fairly limit the opportunity for the extraction of minerals by the Grantee. By offering a Hydraulic Project permit (HPA) for different seasonal period use, WDFW believes that the HPA prevents a taking of that property because it give the grantee an opportunity to go outside the JARPA to acquire his minerals by extending his season through an HPA.
This is far from the truth because the WDFW has an opportunity, by their own actions and decisions to deny the HPA in their own promulgated regulations. WDFW can not, through regulation or other means, outright deny the HPA application but they have thrown other curves, such as; through their illegal interpretation of federal laws, WDFW requires a permit from other federal agencies such as the USFS, which may or may not be required by law. By doing so WDFW has again performed a denial of the HPA permit by holding that HPA permit hostage in lieu of getting other additional permits from a federal agency that may or may not be attainable, nor required. If WDFW continues in this direction, and adopts the regulations, as proposed, it will constitute a regulatory prohibition and a taking of property. WDFW does not have the authority to interpret or enforce federal law, which is between the Mineral Estate Grantee and the Federal Agency in question. The Mining Acts of 1866 and 1872 are not “discretionary” Acts, they are, instead, a grant and already authorize and permits the prospector and Mineral Estate Grantee (miner) to take the minerals. The State can not prohibit that which federal law encourages.
United States v Kosanke Sand Corporation
(cite as: 12 IBLA 282)
*288 “It is our conclusion that 'existing law applicable to the agency's operations,' viz., the General Mining Act of 1872, as amended, supra, under which the claims herein involved were located, and which opens to location and purchase, '[e]xcept as otherwise provided, all valuable mineral deposits in lands belonging to the United States, * * * and the lands in which they are found * * *', 30 U.S.C. § 22 (1970), 'makes compliance impossible “This comports with the position of the Department when it reported in 1971 to the Council on Environmental Quality that the General Mining Act of 1872 do[es] not admit of environmental considerations.”
“To the extent that the mining laws give to individuals the right to enter the public domain, to locate claims thereon, to discover minerals therein, and to extract and remove those minerals there from, all without prior approval of the United States, the development of a mining claim cannot be tortured into 'Federal action,' major, minor or otherwise.” (emphasis added)
If the United States can not torture a miner into a Federal Action, major, minor or otherwise, what makes WDFW believe that they can torture the same Mineral Estate Grantee (miner) into a State Action, major minor or otherwise?
There have been millions of words, both verbal and written on the affect of the WDFW, JARPA and HPA regulations on the mining community. For the most part those words have been ignored and twisted to the advantage of the WDFW to create regulations through TU’s that are prohibitory in nature.
In this document, we have shown how the Mineral Estate Grantees have clear and distinct rights unlike any other user of the public lands. We have shown how the Mineral Estate Grantees have “Real Property” under the highest sense of such terms. We have shown how the WDFW’s decision to use TUs to regulate/restrict suction dredge mining is based on totally flawed or unsound “science” (and we use that term loosely – there is no “science”). We have shown how neither the State of Washington nor the WDFW have the authority to supersede Federal Law. We have shown how the WDFW’s requirement that Mineral Estate Grantees submit a NOI to the USFS is far beyond the authority of the WDFW, and flies in the face of the USFS’s own Mining Regulations. We have shown how mining activities under the U.S. Mining Acts are “non-discretionary” activities, and as such do not fall under the purview of the ESA, or for that matter, the CWA, or even NEPA. We have shown how the proposed rules will constitute a “taking” of the Mineral Estate Grantees property, and lastly, we have shown how it is the continuing intent of the U.S. Congress to “foster and encourage” mineral development.
This whole thing could have been avoided by WDFW if they had just attempted, in good faith, to work within the law and work with the miners to come up with some reasonable regulations. For well over 5 years the negotiations have been going on and the miners and prospectors are well aware that the process is coming to an end. This is the last chance for their plea’s to be heard by the WDFW. The Departmental Bureaucracy has worn all of the participants down to a point were patience is thin . . . but this does not mean WDFW has the final word, yet.
The Mineral Estate Grantee’s and prospectors are still positive in their position, still looking to make the American System work as it should. They have rights granted to them, and up to this point, those rights have been violated because the American System is failing because of violations of the law by the WDFW. There is still one more step in the process to insure that the American System will work for the people.
PLP & the WMD and their members and member organizations feel compelled to put the State of Washington on notice that WDFW must be guided back in the right direction or be responsible for the real possibility of Takings Claims under the 5th and 14th Amendments to the U.S. Constitution, violations of Washington State Laws and violations Federal Law on the this issue.
XI. RECOMMENDATIONS: We strongly suggest that in order for the State of Washington and the WDFW to avoid many costly takings lawsuits that they discard the proposed rules, go back to “good faith” meetings with the miners and using good sound verifiable science draft regulations that protect the environment as much as possible without materially hindering or interfering with the lawful mining activities of the Mineral Estate Grantees.
Thank you for considering these comments.
Respectfully submitted by;
President, Public Lands for the People, Inc.
President, Waldo Mining District
cc. Washington State Fish and Wildlife Commission
Washington Resources Coalition
James Buchal Esq.