Jim Porter: Supreme court decision on suction dredging (opinion) | TahoeDailyTribune.com

Jim Porter: Supreme court decision on suction dredging (opinion)

Jim Porter
Opinion

In a highly watched case, with dozens of amicus curiae briefs, the California Supreme Court issued an historical decision balancing the competing interests of exploiting versus preserving California's rivers.

Court's Opening Paragraph

"California was shaped by the search for gold. In time, the state's other natural treasures—its waters and wildlife, its forests and coastlines — proved similar draws. We consider here a conflict arising from the competing desires to exploit and to preserve these various resources. The people assert the state may, in pursuit of protecting fish habitats and the quality of the state's waterways, temporarily ban a particular method of gold mining (suction dredging) pending adoption of suitable regulations."

In 2009, the California Legislature imposed a temporary moratorium on the issuance of dredging permits pending further environmental review by the Department of Fish and Wildlife.

Defendant Brandon Lance Rinehart, convicted of suction dredging, challenged California's moratorium. He claimed federal mining law preempted state environmental law.

The trial judge in Plumas County ruled for the state, the Court of Appeal modified that decision favoring the dredger Rinehart, and the case made it to the California Supreme Court.

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Suction Dredging

Suction dredging is a technique used by miners to remove matter from the bottom of waterways, extract minerals, and return the residue to the water. A high-power suction hose vacuums loose material from the bottom of a streambed. Heavier matter, including gold, is separated at the surface by passage through a floating sluce box, and the excess water, sand and gravel is discharged back into the waterway.

Hydraulic Mining

By the early 1850's, after prospectors had pretty much picked clean gold nuggets from the Sierra Nevada foothills, operators turned to hydraulic mining which involved blasting hillsides with large volumes of high-pressure water to liquefy the earth and cull gold.

As we all know, the environmental impacts, still visible in California's foothills, were disastrous. Hydraulic mining was finally outlawed in the late 1800s.

One footnote in the case cited an amazing statistic. "During the heyday of hydraulic mining, more than triple the volume of earth excavated in digging the Panama Canal was discharged into the Yuba River, just one of four affected waterways."

All along, suction dredging continued to be lawful.

The Mining Law of 1872

The Mining Law of 1872 allows citizens to enter federal land freely and explore for valuable minerals. That and other similar laws have been relied on by dredgers for years.

California Laws

California has had laws protecting the waters and fish and wildlife within its borders predating even the federal laws upon which Rinehart relies. As the Court ruled, "under English common law, the sovereign held title to the navigable waters within the land's borders in trust for the benefit of the people."

The issue presented before the Supreme Court was which of these two bodies of laws controls: federal laws allowing mining or California laws protecting its natural resources.

Porter's Rafting on the River

I must say I've always found it interesting as I've rafted on many rivers — floating by suction dredging equipment ­— sometimes running without a miner on the river.

I appreciate the joy and freedom that comes with mining but the churning of the river bottom and spewing out of rock, gravel and sand obviously has an adverse impact on the fishery. It was always a curiosity to me how suction dredging was allowed to wreak havoc on river bottoms as an apparent remnant of our mining heritage.

Unanimous Decision

The California Supreme Court unanimously concluded that Congress did not intend to preempt state and local laws when it enacted federal mining laws allocating mining rights.

We may have seen the last of suction dredging in California's rivers. Bad news for Jefferson County.

Jim Porter is an attorney with Porter Simon licensed in California and Nevada, with offices in Truckee, Tahoe City and Reno. Jim's practice areas include: , development, construction, business, HOAs, contracts, personal injury, accidents, mediation and other transactional matters. He may be reached at porter@portersimon.com or http://www.portersimon.com.

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