Mendocino County judge invalidates states frost protection regs

[2cmorau]

Mendocino County judge invalidates state's frost protection regs

wanna say hello to everyone, i know i haven't posted for a while
Hey Hefty Sweetcongrats on your effort
pic of my last camp trip detecting and drywashing


For the whole story
Mendocino County judge invalidates state's frost protection regs - Ukiah Daily Journal


Mendocino County Superior Court Judge Ann Moorman ruled in favor of a group of local landowners who sued the California State Water Resources Control Board over new regulations affecting Russian River water used for frost protection in local vineyards.
Moorman said that she agreed with the plaintiffs and declared the new regulations "constitutionally void." Moorman, in her written decision handed down Wednesday afternoon, said "The court concludes that the SWRCB exceeded its authority by having adopted a regulation encompassing all classes of water rights holders including riparians and failing to make the necessary specific findings as to those water users." Moorman also declared the new regulations invalid because the state did not present convincing evidence that the regs were necessary.
The state water board has 60 days to file an appeal.
The new regulation would have limited the amount of water grape growers can divert from the Russian River for frost protection. It was to go into effect last March. Acting on a suit filed by Rudolph and Linda Light, who grow grapes in Redwood Valley, Moorman granted a stay of the enforcement of the regulation until the case was decided.The State Water Resources Control Board adopted the regulation in 2011, stating that "the high, instantaneous demand for water for frost protection by numerous vineyardists and other water users may contribute to a rapid decrease in stream stage that results in the

 

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[blynch35]

nice gold...

 

[2cmorau]

hey thanks blynch35 106 grains

I guess nobody got excited by the great news that judge Ann Moorman decided (The court concludes that the SWRCB exceeded its authority by having adopted a regulation encompassing all classes of water rights holders including riparians and failing to make the necessary specific findings as to those water users.") thats a huge deal for us dredgers
well since that didn't get your cockels all warm and fuzzy
hiow about this one
Please Read Below:


From: Bruce Beatty <[email protected]>
Subject: HEARING: Beatty v WDFW, Superior Court
To: "Butch Wilson" <[email protected]>, "Bill Thomas" <[email protected]>, "Ben Butler" <[email protected]>, "Bob Carstensen" <[email protected]>
Date: Tuesday, October 2, 2012, 11:59 AM

September the 13th, 2012, in Ellensberg Washington found thirty (30) miners and their attorney representing the small scale mining community in an inadequate room for a hearing before a judge. The room only had folding chairs but by the time we all filed in there was only one left vacant. Also inadequate was the room did not have a projector screen necessitating Attorney James Buchal to drape paper over a chalk board type of apparatus in order to show Matt Matson's dredge video. Also there was no way to dim the room for adequate viewing by the judge because there were no window blinds. Credit goes to James Buchal for not panicking over this and we started the hearing promptly at 9:30 AM.

It was incredible to see Attorney Buchal appearing so fresh given that he had just driven from Portland after doing three days of intensive depositions with staff from Oregon State regulating agencies, DEQ and DSL. When we all marched into the hearing room only the WDFW Attorney was present. You should have seen the look on his face when we all came in. It was priceless as he was the ONLY opposition in the room. To put the thirty miners, including seven ladies in persepctive, the hearing that Jerry Hobbs and PLP held recently in San Bernardino County, California had 60 miners representing six cases. We had 30 for one case, making me so proud of our effort here.

The Judge, who is running for her judgeship in the upcomming election, played her role well, asked good questions and announced that she had received and reviewed the materials and that we would not be reviewing rule making today.

James Buchal led off and talked for about 70 minutes. On the table to his left were 4 large black three ring binders, on the floor another two black binders and on a chair to his right was another. I sat directly behind him and you have to hand it to the guy, HE KNOWS WHERE TO FIND THE 'PAGE' AND PARAGRAPH IN AN INSTANT TO MAKE A POINT OR TO SUPPLY A REFERENCE. After the morning portion of the hearing was done, Vic Pisoni came up to me and said how impressed he was of Attorney Buchal. I totally agree with Vic.

Attorney Buchal started of with describing the importance of the 'bell curve' and how that is important to understand the life cycle and viability of fish life in hatching and rearing. He stated that Dr. Crittenden has far superior credentials as compared to Biologists Meyers and Harvester. Mr Harvester and Meyers do NOT have guiding standards for a Biologist to assess risk. They have no record of spawning surveys or objective evidence to develop the HPA conditions in this case. They can't even state to know if there are Bull Trout (a threatened species) at all in this system.

James Buchal made it clear that Fortune Creek is a steep, cold, high elevation and fast moving creek that is, by and large, poor spawning habitat. Miners dredge in places fish don't like to nest in resulting in a 1/10,000 (could be as musch as 1/1million) years that a miner would put a suction nozzel in a redd. Matt Matson's suction dredge video clearly demonstrated this fact.

It seems that the only issue for the WDFW Agency is that the miner MIGHT destroy a redd. Fish eggs are in the gravel by the 100's clumped in one spot, the redd about the size of an open man's hand. Miner's eyes are inches away from the gravel and he/she sees all that goes into the nozzel and can withdraw the nozzel when eggs are seen. He is, at that moment, obligated to move his nozzel to another location per rules found in the Gold and Fish Pamphlet. Attorney Buchal brought out the fact that he had a large batch of miner's affidavits stating that they have never sucked up or had seen fish eggs in the streams. I might add that Mr. Jerry Hobbs of PLP was the first signatory of our affidavits. To further lessen the risk to the fish eggs is the FACT that after 2-3 days in the nest, (eggs harden) should the eggs get sucked up a significant percentage will survive going through the dredge and then falling into the cracks of the substrate. THIS DOES NOT PRESENT A RESOURCE RISK OR AN INJURY TO THE FISHERIES. WDFW argues that a single egg must be protected yet they don't know how many fish are present in this stream, NOR DO THEY KNOW HOW MANY FISH ARE CAUGHT, NOR HOW MANY OF THOSE FISH WERE FEMALES WITH EGGS STILL NOT DEPOSITED. MR BUCHAL EXPLAINED THAT A FISHERMAN CAN KILL UP TO TWO FISH PER DAY WHILE A MINER CAN'T KILL ONE FISH EGG IN OR OUT OF THE WORK WINDOW.

The development of the current Gold and Fish Pamphlet work windows is contrary to state statutes regarding the Administrative Proceedures Act. Basically the 'work windows' weren't allowed proper negotiation and process. The statutes state that we (all users including bridge and road building contractors, county work, ect.) are to be regulated in the 'least' burdensome manner. Since the statutes were develped in 1947 one can areadily see that the WDFW has migrated its authority and conditioning of HPA past any level of reason. WDFW needs standards and the statutes have failed to give the WDFW standards resulting in today's extraordinary levels of regulating small scale mining activities. I might add that even in Oregon, and the possibility that they may be soon under the NPDES permitting program of the EPA, that each time new rules are put in place that the rules are to become more stringent. Here in Washington the rules and conditioning of HPAs in our case have become more stingent without authorization from any statute.

Attorney Buchal brought out the fact that there are many other HPAs that demonstrate an increase in work window timing for the miner. Mr. Buchal stated that WDFW believes a stream with few fish as in this case requires more stingent conditions as compared to streams with a more than adequate fish population. IT SHOULD BE JUST THE OPPOSITE BECAUSE OF THE RISK FACTOR. Other HPAs merely stated "avoid small gravel areas". Mr. Buchal introduced a new HPA, conditioned by the same Biologist (Mr. Meyers) that consisted of increased work window of 45 days. This HPA involved a claim located on the Cle Elum River that is contiguous with the creek involved in this case. WHY?

I must make it clear that this hearing is our response to the PCHB (Pollution Control Hearign Board) opinion of last November. In the PCHB hearing WDFW tried to excuse the fact that they do not consider the Federal Mining Laws when doing an HPA process. They claim that they can preempt the federal laws because of the California Commission Case. Attorney Buchal made sure the judge understood the status of Federal Law, the 14th Amendment (Supremacy Clause) and the lack of standing by the WDFW to 'prohibit' and 'interfere' with mining activity on federally registered mining claims located within the National Forrest or BLM lands.

Simply put, Attorney Schwartz, opposing attorney, was out shown by Attorney Buchal. I sensed he was uncomfortable talking with the judge. On several occasions the judge asked Attorney Schwartz a few questions, He practiced semi avoidance in answering and in my opinion failed to adequately answer her questions. Mr Schwartz's main contention was that If Mr. Beatty had just 'cooperated' with the bioligist that he may have had an increase from 15 days for in-water dredging but he didn't say how many more days he could have received.

In regards to doing a site visit, Attorney Schwartz said even if Mr. Beatty only had a hip injury (I had severe left hip osteoarthritis leading to a total hip replacement in June) that I could have revealed where I wanted to dredge. IT WAS MY FAULT THAT I DIDN'T COOPERATE BY LOCATING PLACES ON A MAP WHERE I WANTED TO DREDGE. Well, I had never been more than 1/4 mile up stream and I'm supposed to tell a biologist where on a map I would like to dredge? We are talking about more than 2.5 miles of stream to prospect. Mr swartz said that I could continue to 'mine' with a pan, or rocker box, sluice or highbanker as that was adequate for me to locate more of the claim's minerals. Attorney Buchal did eventually reinforce the fact that the biologist wanted to do a site visit in April or May, despite the road being closed due to residual snow pack making the site visit unrealistic.

Mr. Schwartz continued to state that there is a possiblity Mr. Beatty would suck up a fish redd even though the odds were extremely unlikely, therefore the biologist needed to only allow 15 days as a work window.

Attorney Schwartz did take up more than 75 minutes to present the WDFW position. The judge , to my surprise, wanted more information. She did ask Schwartz some questions as previously stated. She closed the morning portion of the hearing at noon and ordered us back by 1:30 PM. At 1:30 we did reconvene and Attorney Buchal did his rebuttal to Attorney Schwartz's presentation. Schwartz tried to do the same thing but was poorly done. After stating that she was satisfied with the presentations and thanked the Attorneys for their clear and concise presentations she closed the hearing at 2:50 PM. She said she will have a decision but didn't state how long it will take to do so.

ABOUT THE JUDGE. The Judge, Honerable Fran Schmeleski, has to run for office. Unfortunately she was put in place November 2011 by Governor Christine Gregroire. We must remember that Christine Gregroire is the former Director of the Department of Ecology. We also must remember that Governor Gregroire did sign the ocean beach mining bill and then upon further reflection states she had made a mistake. This fact makes it suspect, in my opinion, that we will not get an unbiased opinion from Judge Schmeleski. You never know, the evidence presented to her is over overwhelming in favor of the small scale prospector/miner. We have to remember that this hearing was mostly focused upon the ruling and opinion by the PCHB (who wouldn't 'certify' their own opinion).

Early on, Judge Schmeleski was approached by Attorneys Buchal and Schwartz to allow the case to go directly to the Court of Appeals thereby saving all involved expenses incurred for a Superior Court hearing. Unfortunately she insisted on having a hearing. Suffice it to say, should we miners get an unfavorable opinion or visa versa, the litigants will most likely appeal to the Court of Appeals. Every effort will be made when the Superior Court judge offers her opinion and ruling to relay the document to you. The possibility of ongoing litigation remains positive.

My thanks go out to all that attended the hearing, especially the men that brought their wives. All should also know that Jerry Hobbs and the Board of PLP are providing support. Jerry Hobbs is convinced that this is a VERY SIGNIFICANT case given the legal and scientific aspects involved. Dave Rutan, "Oregon Gold Trips", supports the case by donating a 'share", a $2000.00 value and grand prize for the legal fund raffle. This 'share' applies to the recipient access to the Emily Camp located on a patented claim in the Kalmiopsis Wilderness
located East of Grants Pass, Oregon.

I regret taking so long to get this report out to you. Please forward to whomevr you feel would be interested in the case.

Bruce Beatty, small scale mineral prospector and miner.

 

[Hefty1]

Read both, they are great news.

 

[Hefty1]

All can use this...


I must make it clear that this hearing is our response to the PCHB (Pollution Control Hearign Board) opinion of last November. In the PCHB hearing WDFW tried to excuse the fact that they do not consider the Federal Mining Laws when doing an HPA process. They claim that they can preempt the federal laws because of the California Commission Case. Attorney Buchal made sure the judge understood the status of Federal Law, the 14th Amendment (Supremacy Clause) and the lack of standing by the WDFW to 'prohibit' and 'interfere' with mining activity on federally registered mining claims located within the National Forrest or BLM lands.

 

[delnorter]

Thanks Bruce, great post, I look forward to updates. You must have a pretty tight group up there.

Mike

 

[Fullpan]

Thanks 2c and hefty. this is valuable info. I think the reason you tend to get no immediate response, at least in my case, is i want to take the time to think
about the significance and implications first. I, for one, am interested in info like this from all states, as it is all tied together.

 

[63bkpkr]

2cmorau,
This is great news thank you for both postings. It is an example of what can be done when we the people get together and try. Now we wait for response's to the judges ruling...........63bkpkr

 

[2cmorau]

hey gals and guys
it is great news, and we do need to band together keep the pressure on, no backing down'
got in late yesterday three day camping trip found a nice one with the GMT 23 g

 

[freddy williams]

Nice artical and awsome gold

 

[NeoTokyo]

Hey thats pretty nice gold, score!

Awesome read too!

 

[vini]

Curious to see how actual federal law goes over in the court room, will it be recognized or ignored.
Good luck guys

 

[nuggetshooter323]

Very nice! I'm glad to hear there's some sanity left in my old home state.

 

[blynch35]

ya nice job on the gold and thanks for the info..