Supreme Court Decision on Suction Dredging
By Jim Porter
In a highly watched case with dozens of amicus curiae briefs, the California Supreme Court issued a historical decision balancing the competing interests of those seeking to exploit California’s rivers and those seeking to preserve them. The issue was suction dredging for gold.
“California was shaped by the search for gold,” the justices wrote. “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 had 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 that federal mining law preempts 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.
The Impact
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-powered 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 sluice box, and the excess water, sand, and gravel is discharged back into the waterway.
In the early 1850s, after prospectors had pretty much picked the Sierra Nevada foothill streams clean of gold nuggets, operators turned to hydraulic mining, which involved blasting hillsides with large volumes of high-pressure water to liquefy the earth and cull the 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.”
The Laws
All along, however, suction dredging continued to be lawful. The federal General Mining Act 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.
However, California has had laws protecting the waters and fish and wildlife within its borders predating even the federal laws upon which Rinehart based his defense. 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 the issue: federal laws allowing mining or California laws protecting its natural resources.
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. As a consequence, we may have seen the last of suction dredging in California’s rivers.
Reprinted with permission from the Sierra Sun newspaper.
Conservation News
With Tom Martens
CDFW Stocks Hot Creek
California fish-and-wildlife officials have decided to stock rainbow and brown trout in the wild-trout section of Hot Creek in an effort to restore the ailing fishery. Hot Creek, in Mono County near Mammoth Lakes in the eastern Sierra, was once a premier wild-trout fishery, but it is no longer what it once was, as reported by fishing guides and local nonprofit groups to state wildlife managers.
“For unknown reasons, the Hot Creek fishery appears to have declined substantially in recent years,” said a memo from the California Department of Fish and Wildlife, “with markedly lower catch rates and few trophy (greater than 18-inch) fish coming to the creel. Drought-related impacts are the suspected cause, including low flows, lack of flushing flows in late spring/early summer to mobilize fine sediments and expose spawning gravels, potential changes in water quality/chemistry and increased aquatic vegetation.”
Hot Creek was designated a catch-and-release stream in 1980, then given Wild Trout status in 2007, which requires that fish planting be permitted only if necessary to sustain a wild-fish population. In what remains of 2016, CDFW will stock 3,000 subcatchable rainbows and 4,000 brown trout, said the memo. The department will plant 8,000 rainbows and 4,000 browns annually for the next two years.
CDFW biologists will conduct electrofishing surveys in 2017 and 2018 to determine the relative abundance of trout and the proportion of hatchery to wild fish. The monitoring will be conducted “in order to evaluate relative abundance, the proportion of hatchery to wild fish, ratio of rainbow to brown trout, size class structure, and to try to document natural recruitment within the fishery,” said the CDFW. If a high level of wild-trout recruitment is seen in the monitoring, then the department will discontinue stocking hatchery fish.
“While it may appear counterintuitive to stock a designated Wild Trout Water, policy allows for such stocking under specific terms and conditions. Hatchery-produced trout of suitable wild and semi-wild strains may be planted in designated waters, but only if necessary to supplement natural trout reproduction,” the CDFW memo said. More information on Hot Creek’s trout fishery is available at http://www.fgc.ca.gov/policy/p2fish.aspx.
Lawmakers: Protect the Smith
Members of the California state legislature approved a resolution urging the federal government to protect a fork of the Smith River from environmentally degrading strip mining. “The legislature urges the President of the United States and Congress to permanently safeguard the unprotected North Fork of the Smith River watershed in Oregon from mining activities that would have potential impacts on water supplies, economies, or the environment in California’s portion of the Smith River watershed,” said Senate Joint Resolution 3.
The 25-mile-long Smith, a popular fishing location, flows through Del Norte County in California and is the only river in the state without a dam. It supports healthy runs of salmon and steelhead. Because of its unique character, the Smith has been granted extensive protection under the California and federal Wild and Scenic River Programs, and in 1990, it was designated the Smith River National Recreation Area (SRNRA). However, left vulnerable after all the protective actions is the 28-mile-long North Fork of the Smith, where land has been targeted for strip mining.
In 2012, a mining company submitted a plan to develop and operate a 3,900-acre strip mine to extract nickel, cobalt, and chromium in the watershed of the North Fork of the Smith. In 2014, an Oregon resource agency refused to grant the company permission to use water for the mining. The U.S. Forest Service hasn’t approved a mining claim in many years, but new claims are still allowed under their rules. The SRNRA does allow mining claims, but only in the California portion of the Smith watershed.
To provide further protection for the watershed, the Smith River Alliance, fishery conservation groups, public agencies, and some residents are advocating for a CDFW Heritage Trout designation for the upper South Fork of the Smith. According to the alliance, “the nominated reach provides anglers with the opportunity to catch one of California’s most prized trout — the Coastal Cutthroat Trout — in a wilderness setting filled with solitude, tremendous beauty, and extraordinary biodiversity.” In addition to the Smith River Alliance, Trout Unlimited, California Trout, the Native Fish Society, and the California Sportfishing Protection Alliance provided letters of support for the Heritage Trout designation, which, if approved by the California Fish and Wildlife Commission, would apply to the South Fork of the Smith from the confluence with Blackhawk Creek upstream to the Inland Lake Trail crossing, including the following tributaries: Buck, Quartz, Eight Mile, Williams, and Harrington Creeks and the Prescott Fork in Del Norte County.
Hilton #1 to be Wild Trout Water
In addition to the South Fork of the Smith, fish-and-wildlife officials are recommending Wild Trout status for Mono County’s Hilton Lake #1, which is also known as Davis Lake. Hilton, a 65-surface-acre water body, is part of an interconnected 10-lake complex known as the Hilton Creek Lakes. Eight of the lakes in the complex support self-sustaining brook and rainbow trout fisheries.
Fish Projects Get $6.7 million
The California Department of Fish and Wildlife awarded $6.7 million in grants that will benefit trout and other fish. The American River Conservancy will receive up to $1.8 million for the American River Headwaters Restoration Project. The Tahoe Resource Conservation District will receive up to $4 million for the Johnson Meadow Acquisition, Upper Truckee River. The Napa County Department of Public Works will receive up to $800,000 for the Napa River Restoration, Oakville to Oak Knoll Project. The Family Water Alliance, Inc., will receive up to $150,000 for the Butte Creek Diversion 55 Fish Screen Project.
CDFW’s grant program is based on the Water Quality, Supply, and Infrastructure Improvement Act of 2014 and gets its funds from the voter-approved Proposition 1. “In the first year of our Proposition 1 program, the number of proposals received outstripped the availability of funding,” said CDFW’s director, Charlton H. Bonham. “We are responding to this demand by readily supporting additional projects to address specific water action plan objectives which will ensure the program’s continued momentum.” The proposition authorized the state to spend $7.545 billion for water projects, some of which benefit fish and wildlife. Of that amount, nearly $1.5 billion was earmarked for “protecting rivers, lakes, streams, coastal waters and watersheds.”
Reduced Sierra Stream Flows
Trout in the Sierra Nevada could find less water in the streams in which they live as a result of the timing of future snowmelt in the era of climate change. That’s the conclusion of research by scientists at the University of Nevada Reno (UNR), as reported in a technical journal. Conventional scientific thinking says that warming temperatures that result from climate change will result in faster Sierra surface runoff in the form of rain, rather than snowmelt. But a UNR scientist reports that computer modeling shows that snow-related runoff will be earlier and slower than normal, and this would result in less water flowing into Sierra streams and reservoirs.
“It’s counterintuitive, but with a warming climate snowmelt starts sooner in the season, and at a slower rate because the warming occurs earlier when days are shorter and we have less sunlight,” stated UNR researcher Adrian Harpold in a news article in ScienceDaily. Harpald conducted the study with colleagues from Colorado, where a similar effect was noticed. “What makes runoff less efficient is that slower snowmelt reduces the amount of moisture being pushed deep into the subsurface where it is less likely to evaporate.”
Funding for “Source Waters”
State lawmakers approved and the governor signed a bill that would make it easier to fund restoration in so-called “source waters,” which are Sierra meadows and other areas above dams. Assembly Bill 2480 provides a legal definition for “source watershed as integral components of California’s water system and eligible for financing on an equivalent basis with other water infrastructure projects.” That language makes these areas more eligible for funds for “wet and dry meadow restoration, road removal and repair, stream channel restoration, conservation of private forests and projects that improve water retention, and flows under changing climate conditions.” The measure was supported by a number of conservation groups, but opposed by an association of water agencies. AB-2480 contains no direct funding for implementation, but sets the stage for future appropriations.
Lower License Fees for Veterans
Two bills working their way through the state legislature would provide discounted fishing license fees for veterans. Senate Bill 1081, by Sen. Mike Morrell (R-Rancho Cucamonga), would reduce sportfishing and hunting licenses to a flat fee of $5 for honorably discharged California veterans. Assembly Bill 1844, by Assembly Member James Gallagher (R-Plumas Lake), would reduce fishing and hunting licenses by 25 percent for the state’s honorably discharged veterans. The measures are pending before legislative committees.
Celebration for Steelhead
Humboldt County invites anglers to party with the steelhead from January to March 2017 as part of its Steelhead Days celebration. The celebration includes a fishing contest, angling opportunities, educational events, and parties in many communities. The event is coordinated by the Mad River Alliance, and the goals of the celebration are to increase awareness of steelhead and help out local economies. For a schedule of activities, go to http://humboldtsteelheaddays.com.
CalTrout’s Digital Newsletter
Kudos to California Trout for producing what has to be one of the flashiest newsletters of any conservation group. The organization’s newsletter, The Current, takes advantage of the most modern electronic technology to produce 64 pages of news, not only about the organization, but also about fishery issues. See it at http://caltrout.org/the-current.
