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  1. #1
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    SB 889 Suction Dredge Permit Fee Refund

    SB889 BILL ANALYSIS
    -----------------------------------------------------------------
    |
    |SENATE COMMITTEE ON NATURAL RESOURCES AND WATER
    |Senator Fran Pavley, Chair
    |2009-2010 Regular Session
    |
    -----------------------------------------------------------------
    BILL NO: SB 889 HEARING DATE: May 3, 2010
    AUTHOR: Aanestad URGENCY: Yes
    VERSION: As introduced CONSULTANT: Katharine Moore
    DUAL REFERRAL: No FISCAL: Yes
    SUBJECT: Vacuum or suction dredge equipment: refund for permits
    BACKGROUND AND EXISTING LAW
    Suction dredge mining uses a vacuum system to pull gravel and other materials up from a river, stream or lakebed. On-board equipment is used to process the collected matter and remove any trace amounts of gold before exhausting the remainder back into the water. A permit is required to operate suction dredge mining equipment in California. In the last decade, the California Department of Fish and Game (DFG) sold approximately 3,200resident and additional non-resident suction dredge mining permits annually. In 2009, the permit for state residents cost$47, increasing to $185.25 for non-residents.
    Recently, lawsuits and legislative action have required environmental review of suction dredge mining. On July 9, 2009,a court issued a preliminary injunction restricting DFG from issuing suction dredge mining permits (Leeon Hillman et al., vs. California Department of Fish and Game et al ., Alameda Co. Superior Ct., No. RG09- 434444) until the litigation was resolved or the court issued a new order. On August 6, 2009, suction dredge mining was suspended in any California river, stream or lake when SB 670 (Wiggins, c.62, Statutes of 2009) became law. There are limited exceptions to the mining ban and suction dredging operations for regular maintenance of energy or water supply management infrastructure, flood control or navigational purposes are still allowed. Suction dredge mining will remain prohibited until DFG completes an environmental impact report and updates its regulations, and the regulations take effect. DFG estimates the review will be completed in late summer of2011.
    1
    DFG issued 3,643 suction dredge mining permits in 2009. However, no suction dredge mining was allowed after August 6. Current law does not allow DFG to provide refunds to permit holders. Suction dredge permit fees are deposited in the Fish and Game Preservation Fund where they are used to support DFG functions. DFG does not specifically track employee time spent on suction dredge mining. The department estimates its costs for enforcement and permit processing at approximately $50,000 and$6,000, respectively, of the $175,000 collected in permit fees in 2008.
    PROPOSED LAW
    This bill directs DFG to refund upon request the 2009 permit fee paid by the suction dredge mining permit holder.

    ARGUMENTS IN SUPPORT
    According to the author, "the bill provides relief for the miners who bought their permits on the assumption they would be valid throughout the year. SB 889 is an issue of fairness to allow those miners to be reimbursed, upon request, for the cost of their prohibited permit."
    ARGUMENTS IN OPPOSITION
    Opponents of the bill "are supportive of providing miners pro-rated refunds of their permit fees but do not believe that new legislation is needed for this purpose. Instead, the Governor could direct DFG to provided refunds in the same manner as he did in 2008 and 2009 when the commercial salmon fishing seasons were cancelled." The opponents indicate they would support this approach.
    COMMENTS
    Has the state refunded license fees in the past? In general, permit and license fees paid to DFG are not refundable. However, permit refunds have been given in the past to the commercial salmon fishery following the closure of the 2008 - 2009 and 2009- 2010 seasons. Governor Schwarzenegger specifically directed DFG to refund the commercial salmon fishing licenses purchased for those seasons prior to the closure of the salmon fishing season in his April 10, 2008 and April 21, 2009 proclamations declaring states of emergency. Further, DFG was specifically directed not to deduct any administrative charges prior to refunding the license fees.
    2
    It is not clear that the Governor had or has the emergency authority to order the commercial salmon fishing license refunds, but his order was not challenged.
    Cost of refund: DFG estimates passage of SB 889 as introduced will cost approximately $270,000 ($253,000 in permit refunds, and the remainder in administrative costs).
    Should the Legislature pro-rate the refund? The commercial salmon fishing licenses were refunded in full, and, unlike the dredgers, these licenses were purchased before the start of the cancelled seasons. Prior to 2009, a suction dredge mining permit purchased at any time was valid for the remainder of the calendar year. A suction dredge miner with a 2009 permit issued before the July 9 injunction had the opportunity to dredge prior to August 6. DFG has the date of issue readily available for approximately 83% of the permits. Of the remaining 17%, at least some - but not all - have the issue date on file. DFG would have to manually examine each of this sub-set of applications at additional expense. The ban on mining took effect with approximately 40% of 2009 remaining. According to the New49'ers, mining can occur throughout the year in different parts of California, although anecdotally the most mining activity is in August and September. DFG was unable to offer quantitative information on the seasonality of mining activity on which to base a prorata refund. Pro-rating the refund may cause DFG to incur additional administrative expense beyond that included above.
    Other issues : The author has assured the committee that the bill will deal only with the issue of refunds. The committee, of course, would request that the bill return for review if other amendments are made. The author is aware of this circumstance. SUPPORT
    The New 49'ers
    Siskiyou County Board of Supervisors
    OPPOSITION
    Friends of the River
    Klamath Tribe of California
    Klamath River keeper
    Pacific Federation of Fishermen's Associations
    3

  2. #2
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    Duarte, CA
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    IMPORTANT ! Hearing May 3rd Suction Dredge Permit Refund Bill SB 889

    Please circulate this info quickly:

    The SB889 hearing has been moved from tomorrow until May 3rd. Senator Aanestad's office moved to postpone the hearing by a week, in the hope of getting miners organized to come to the hearing.

    This hearing is to determine if the State will pay back some, or all, of the dredge permit fees to the miners. Senator Aanestad is a strong supporter of the miners and he is requesting the miners attend the hearing.

    I do not have the new hearing time or room number for May 3rd yet, but for today, please communicate that the hearing has been moved to then. As soon as I get the new hearing details I'll forward them to you for dissemination.

    As you all know, the threats against gold mining are at a rampant state right now. I'll keep sending briefs as quickly as I get them. We (the miners) will need to be ready to participate this summer as info comes out.

    Mike and I are planning to dredge on the Rogue River in Oregon after Mike gets back from Cambodia. And knowing that our industry is under attack, when info comes down the pike that says the miners are needed, we'll be there ready to assist.

    Mike and I sincerely appreciated the miners coming last year to Gold Pan to caravan to Sacramento and Oakland together, and I believe they will do it again this year. A big difference this year is that our adversaries are sneaking attacks now, from multiple fronts, which generally provide us only short advance notice to respond.

    Stay tuned, we'll keep sending info as we get it. I also would encourage everyone to stay current by reading updates on the New 49ers
    www.goldgold.com website.

    Thanks very much for forwarding this update to our great miners!



    Rachel Dunn

  3. #3
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    Mar 2010
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    San Bernardino, Ca.
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    Miners Shafted - SB 889 Hijacked - Dredging Permit Fee Refund

    FOR IMMEDIATE RELEASE

    CONTACT: Bill Bird

    June 15, 2010

    (916) 651-4004



    Gold Miners Shafted by Democrats in the State Assembly

    Aanestad Refund Measure Hijacked With Hostile Amendment



    SACRAMENTO: Legislation designed to provide full permit refunds to all Suction Dredge Miners in California has been hijacked in an Assembly policy committee. SB 889 – authored by Senator Sam Aanestad (R-Grass Valley) – would have given miners the opportunity to apply for and receive a full refund of the $47.00 permit fee they paid last year for the right to ply the trade of suction dredge mining on California streams and rivers.



    But the measure – which Senator Aanestad introduced last year after the State Legislature took emergency action to ban the mining practice – was hijacked this morning in the Assembly Committee on Water, Parks and Wildlife. Committee Democrats rejected the notion of a full refund and instead hijacked the bill against Senator Aanestad’s wishes. They amended SB 889 to provide a refund of two-thirds of the original fee instead of the full amount.



    “This committee is all over the map in suggesting what portion of the mining fee should be refunded – and it’s really just arbitrary,” said a frustrated Senator Aanestad during today’s hearing. “The only real fair number here is 100% of the $47.00 fee – and if you’re going to hold your vote for some arbitrary number that you’ve pulled out of thin air – you’re answerable to the people who elected you to office.”



    Although the measure did pass with the hostile amendment attached – Senator Aanestad says he is unsure if he will continue to pursue the matter until he speaks with all stakeholders involved – including the mining organizations who sponsored SB 889. He notes that a Los Angeles small claims court (Wegner v. Koch et. al.) has already ruled in favor of full refunds for California gold miners. In that case, the court found for the plaintiff and ordered the California Department of Fish and Game (DFG) to refund the miner’s permit fee of $47.00 and pay court costs of $32.50. In addition to the cost of the judgment, the DFG and the California Attorney General's office incurred legal expenses associated with the claim.



    “The courts have already ruled in favor of a full refund – and given the outcome of today’s committee hearing – additional claims against the state are almost guaranteed,” said Senator Aanestad. “That means additional costs to state taxpayers – possibly in the millions of dollars – because Democrats refuse to take the fair and right action.”



    Nearly 4,000 suction dredge mining permits were purchased last year according to the DFG – and more than 3,000 of the permits were purchased by California residents alone. The cost of a permit for California residents is $47.00, and for out of state miners the permit fee is $185.25. In 2009, the Department collected about $250,000 from miners who were subsequently denied the right to mine.



    The ban on suction dredge mining took place in early August of last year, following the successful passage of SB 670. It represented a $60 million hit to the Northern California economy where suction dredge mining was the most popular and profitable for miners.



    “My hope is that every miner who paid this fee calls their legislator today to explain to them what the definition of fairness is,” said Senator Aanestad. “Some legislators clearly need a reminder.”

  4. #4
    Join Date
    Mar 2010
    Location
    San Bernardino, Ca.
    Posts
    67
    In the light of what happened with Senator Amesteds bill I thought I would forward my story on to those who might not have read it before.I am grateful for Senator Amesteds work and his dedication to the small mining community,However I was very skeptical from the begining that the same Legislature that passed SB 670 would approve a refund of permit fees or that the girly man governor would sign it.This is not about the forty-seven dollars for me.This is about the future of our State and our Nation! Who oversees our legislature,our elected officials,our Judges,our police?
    It is our responsability as American citizens to assert our legal rights no matter what the cost and this has cost me more time and money than $47.00 plus $32.50 filing fees! In my opinion if 25% of the people of this Nation stood up and said we are no longer going to say things like "well its just forty seven dollars,its not wirth the hassle" we could take back the rights that are taken from us and we can reclaim the greatest Nation in history and return it to the Citizens of America! I am still trying to collect my judgement from DFG and they are trying every trick to not pay! But I can tell you this"I am never giving up!" I am going to haul there ass back into court to answer to the Judge and I am going to hold the Judge accountable to the oath he or she Swore to the Constitution of the United States of America! As I have learned over the years working with Public Lands For The People,Comprimising is battle lost and as Small Scale Miners we must act individually as well as in groups.The power is in our hands.Will we take action or not?

    Thanks,
    Walt Wegner

  5. #5
    Join Date
    Mar 2010
    Location
    San Bernardino, Ca.
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    PLP Gets the Fee

    by Walt Wegner
    Vice President, Public Lands for the People

    Me being as angry as everybody else regarding SB670 prohibition on suction dredge mining in the State of California, I wanted to take action immediately. So on August 10th 2009 I wrote a letter to Donald Koch, Director of California Department of Fish & Game, certified return receipt requested as I do with all official correspondence, stating that I purchased a dredge permit on May 12, 2009 in the amount of $47 and I included a copy of the application and the credit card receipt and stated that due to the subsequent legislation SB670 my permit is now null and void and demanded a refund of my $47 and if I don’t receive a response from your office in 14 days I will take legal action in small claims court to recover my permit fees, court costs and any other related expenses. Having not received a response from the California Department of Fish & Game. On October 8th I filed form SC-100 Plaintiff’s Claim and Order to Go to Small Claims Court listing myself as the plaintiff and Donald Koch, Director of Fish & Game in his official capacity as defendant claiming $47 for my suction dredge permit and $900 for a loss of gold due to my dredge season being cut short figuring I had another week in my dredge season. When I went in to file the small claims lawsuit, the clerk told me I could not file this in Van Nuys because the defendant was in Sacramento and I would have to file in Sacramento. I responded, No, the Director of Fish & Game does business in all of California and I purchased the permit in Los Angeles County, so I was filing in Los Angeles County court. At that same time, they told me I could not sue Donald Koch as an individual, that I could sue the Department. I asked them to see the law stating this. They were unable to provide me with the law, so they accepted and filed the lawsuit. On October 10th, 2 days later, I finally received a response from the Department of Fish& Game, it was not from Donald Koch, but the letter read that they received my letter and that SB 670 did not authorize refunds and they were not going to refund my money. My court date was set for December 14, 2009. On October 30th, I received Form SC-105 Request for Court Order and Answer. The person making the request was Bradley A Solomon, Deputy Attorney General for the State of California asking that the case be dismissed as the plaintiff’s had failed to plead exhaustion of his available administrative remedies, specifically plaintiff had failed to comply with the California Tort Claims Act. They also stated that the legislation did not provide for a refund and there were procedural defects in the Complaint as I had marked that I am not suing a public entity. They claim that Donald Koch in his official capacity is the same as a public entity. I then responded to the Court with the paperwork provided me SC-105 stating that the defendant in this case is Donald Koch it is not the Attorney general of California and that this was not a tort claim that I had paid for services that I did not receive and that I demand my day in court. I sent that on 11/5/2009. On 12/11/09, Friday before mycourt date, I received a Minute Order and Clerk’s Notice of Ruling from the LA Superior Court informing me that Court was convened at 8:30 am on 12/9/2009 in Department 108, Honorable Judge Gregg Marcus presiding, stating that the Court rules that my case had been dismissed without prejudice per court order giving no reason for dismissal and not allowing me to argue my case. Being very suspicious of this I showed up for my original court date, Monday, December 14th, to find that my case was not on the docket. I went to the clerk’s office and they confirmed that my case was dismissed in closed chambers without anyone appearing. I asked the clerk’s office for the law that allows a judge to dismiss a case without me being heard. She could not provide that. I told them at this time that I felt my right to due process had been violated, that they needed to show me the law. I then wrote a letter to Judge Marcus, who had dismissed my case, telling him the story from the beginning and stated that I was never notified that my case was to be heard in chambers or that the date had changed and that I believed at the very least my right to due process had been violated and at the worst there was a conspiracy to prevent my case from being heard. I requested the judge to indicate the specific law which would allow a case to be dismissed in chambers without notification. I again stated that my rights to due process had been violated. I requested the specific law and reasoning that his dismissal was based upon. I asked him to cite the specific law which stated that I could not sue Donald Koch as individual in this matter. I also stated that if the case was dismissed due to a problem with the filing to state the law upon which his decision was based. I requested a response within 30 days from the date of the letter and cc’d the letter to the original judge on the case, Fran Pavley my state senator and Brad Blumenfeld my state assemblyman. Then on or around the 14th of January I received another Minute Order and Clerk’s Notice of Ruling telling me that once again court had convened again at 8:30 am in Department 108 without me being present with the motion granted was to vacate dismissal of 12/9/09 set for oral argument on defendant’s motion both side to be present on 2/3/2010 at 10:00 am in department 108, Van Nuys, California listing me as the plaintiff, Donald Koch Director of Department of Fish & Game and Bradley H Solomon Deputy Attorney General as defendants. Once again I wrote a letter to Gregg Marcus stating that I received the letter notifying me of my new court date stating again that I did not sue the Assistant Attorney General and could only assume that he was going to be there to defend Donald Koch. I expressed my concern that as far as my knowledge goes, legal representation is not allowed in small claims court. I stated again that my right of due process had already been violated when the court previously dismissed my case without me being present and I asked the court to deny the representation of the assistant attorney general to aid Mr. Koch and to see that I’m fairly heard on the issue between myself and Mr. Koch. On February 3, 2010 I appeared in court. Donald Koch was not present. Instead Terry Dickerson from the CADFG appeared in place of Donald Koch. At the beginning of the hearing I stated to the judge that the defendant Donald Koch is not here and request that the judge rule in my favor due to the defendant not showing up. He did not respond to my request, I also requested the judge to ask Ms. Dickerson if she had a license to practice law. At that time the judge stated that this was irrelevant and I replied to the judge saying your honor on Form SC100, information handed out by the court house, you may talk to a lawyer before or after the case, but you may not have one represent you in court unless this is an appeal from a small claims case. The judge then asked T. Dickerson if she was an attorney. She replied, no, she was a biologist. The judge asked if I was satisfied, and I said yes. However, I was not satisfied to continue with the proceeding because she cannot represent Donald Koch in small claims court. The judge then asked me to plead my case, so I went through the order of events once again and I presented to the judge as evidence a letter from the CADFG stating Notice of Refund 2009-2010 Commercial Fishing Salmon Fees upon closure of the salmon fishing season. The judge stated to me that salmon fishing and suction dredging are two separate things. I stated, you’re right your honor, they are. Me as a mineral estate owner have been granted rights under federal law and salmon fishermen do not have the same rights as I do. Therefore, I’m even more entitled to my permit fees and I stated to the judge that the State of California does not authorized mining, they only regulate, reasonably. ha hah. At that time, he asked the defendant if she had a sworn affidavit from Donald Koch giving her authority to represent him in court. She stated, she did not. He asked her if she had a copy of SB670 stating that dredge permit fees were not approved for refund. She stated, she did not. He asked her if she had studied the law and if she could cite any of it. She responded, no. The judge then asked me to produce records to prove my loss of revenue from the dredge season. I did not provide the court with that record. My bad, as they say these days. Upon that he stated that he finds for the plaintiff in the amount of $47, case dismissed. After leaving the court room and speaking with Gerald Hobbs, pres of PLP, I realized that I should have asked for my court costs and any fees related to that from the judge, but in the heat of the moment, I forgot. Once again, my bad. Driving home from the courthouse, I thought to myself, WOW, I wonder what would happen if 50, 100, 300 or maybe 3,000 miners who purchased dredge permits asserted their rights and followed the same path I followed. Would the DFG then do what is right and refund permit fees? Or would they spend more time and money defending multiple lawsuits in small claims court.

    Let me just say, that what one person can do, another person can do!

  6. #6
    Join Date
    Mar 2010
    Location
    San Bernardino, Ca.
    Posts
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    Maybe you would like to send a copy of this to the Ca. DFG director and ask him if he wants to pay you now or if he wants to pay you after you file your small claims action.

    State of California Natural Resources Aqencv ARNoLD SCHWARZEIVEGGER, Governor S*U
    Y
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    -
    &--. ..4
    DEPARTMENT OF FISH AND GAME JOHN MgCAMMA^, ^. ' ' A; .'t* .
    Northern Region
    l-lon ,.l\u ',.lvlE 'JvntY tY'cvAtrItYtAtY' utlectol u*ilS t
    601 Locust Street, Redding, CA 96001 q6*s'
    www.dfg.ca.qov
    June 16,2010
    Mt WalLWeener
    RE: Wegner v. Koch et al., Los Angeles Gounty Small Glaims Gourt No. LAV
    09V06982, Payment in Satlsfaction of .,!udgment (February 3, 2010)
    Dear Mr. Wegner:
    Enclosed is a check in the amount of $79.50, in satisfaction of the Department of Fish
    and Game's obligation as the judgment debtor in the matter referenced above.
    Should you have any questions, please do not hesitate to contact me at the address
    referenced above.
    Sincerely,
    G. STOPHER
    Acting Regional Manager
    Mr. Thomas Gibson, Acting General Counsel
    Ofiice of the General Counsel
    Department of Fish and Game
    1416 Ninth Street, Suite 1341
    Sacramento, CA 95814
    Q ons erving C a fifornia' s'V/i fffife S inc e 1 8 7 0
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