Suction-Dredge Miners Sue California

YREKA, Calif. (CN) - Suction-dredge miners claim in court that California has effectively banned the "the only practicable method" of taking "commercially significant amounts of gold" from rivers.

The New 49'ers Inc., 16 miners and Northwest Mining sued California's Department of Fish and Game in a class action for inverse condemnation, in Siskiyou County Court.

Suction dredge miners use giant hoses to suck sand, mud and gravel from streambeds, mechanically "pan" it for gold, then spew the disturbed water back into the stream. Environmentalists call it ecologically harmful.

The miners claim the ban caused "several thousand" class members to suffer losses "roughly estimated to average $500,000 per claim," a sum that "exceeds $50 million" in all.

An environmental attorney called elements of the lawsuit "patently ridiculous."

"The miners' loss of $500,000 per claim is highly speculative, and patently ridiculous," Jonathan Evans, attorney and Toxics and Endangered Species Campaign Director for the Center for Biological Diversity told Courthouse News.

"There is no way the miners can determine the amount of minerals under our state waterways. The majority of suction dredge mining is done as a destructive hobby. A survey from the California Department of Fish and Game of suction dredge miners found that only 18 percent do it for full-time income. There's no reason Californians should subsidize this polluting and destructive practice."

The miners seek a writ of mandate vacating approval of the ban and the findings that supported it, and the Final Supplemental Environmental Impact Review vacated and the regulations set aside, and Fish and Game ordered to keep issuing permits under the previous suction-dredging regulations.

The miners, who say they have claims on federal land, call the ban an unconstitutional taking, pre-empted by federal law, and say it violates the California Environmental Quality Act.

The fees for suction-dredging permits do not cover the cost of the permitting program, so the state ends up subsidizing the mining, according to an analysis of Assembly Bill 120.

But the miners claim that two California laws and a set of regulations keep the class members from gold.

"There are extremely small-scale nonmotorized recreational mining activities, including panning for gold, that remain lawful in California, but it is not possible to recover commercially significant amounts of gold through such means," the miners say in the complaint.

They claim California is violating their property rights and denying them "all economically beneficial or productive use of their mining claims," which amounts to taking them for public use.

Evans disagrees.

"The state's rules do not say they can't mine their claims by less destructive means, such as panning for gold or hand mining," the attorney said. "No one in the environmental, tribal, or fisheries community is claiming that miners should be barred from their claims, but they shouldn't receive a state subsidy to pollute waterways, kill wildlife and destroy tribal resources by suction dredge mining."

The complaint states: "A fundamental error, repeated throughout the FSEIR [final supplemental environmental impact review], is confusing potential environmental impact with actual environmental impact. There is no shortage of interested parties eager to lodge testimony with the department that all sorts of consequences might or could result from suction dredge mining.

"The only potentially significant adverse impact from suction dredge mining would arise if miners dredged into a nest (redd) of fish eggs, were unable to stop in time (though underwater and observing his or her nozzle closely), and thereafter sucked the eggs through the dredge, and this happened with sufficient frequency to affect fish populations. Plaintiffs are unaware of such an event ever occurring, in part because natural conditions (snow, ice and cold water) and prior regulations limited dredging activity when fish eggs were present." (Parentheses in complaint.)

Again, Evans disagrees.

"Regardless of whenever you are out there suction dredge mining it harms the environment," he said. "Whether you are actually destroying the redds and salmon eggs or not, you are still suspending mercury in the river. Anytime you are out there suction dredge mining in active water bodies you're destroying wildlife and water bodies."

He added: "Suction dredge mining has an incredibly harmful effect on California's water quality, wildlife, and cultural resources. It's time to end this destructive practice. The State Water Resources Control Board condemns the harmful effects on water quality because it suspends toxic mercury into California's water supplies and aquatic systems. The U.S. Fish and Wildlife Service opposes the harmful effects of suction dredge mining on amphibians and fish. The state can't afford to subsidize this type of polluting river mining in an era of limited budgets and limited water supplies. It costs California over $1 million a year to subsidize the suction dredge. There is absolutely no reason why California should be subsidizing this type of destructive recreational mining."

The plaintiffs are represented by James Buchal, with Murphy & Bucal, of Portland, Ore.

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