Arguement Against 838

[Bejay]

Without even mentioning mining; a very strong argument can be made against Oregon Senate Bill 838, and all the subsequent Bills that support any part of the dredge ban as written.
The dredge ban brings forth the issue of "motorized" vs "non motorized" utilization, and bans the use of motors within the in-stream and riparian zones of rivers having adonomous fish. The anti dredge bill targets one user of motors while allowing others the right to use motors. This contradicts the State's own Constitution.
If motors can not be used by the miner then no others should be allowed the freedom to use motors. Outboard motor boats, irrigation pumps, pumps, vehicles, etc should not be allowed either. Heck.......many campgrounds and RV parks are adjacent to the rivers and stream that are home to adronomous fish. Houses with all kinds of motorized equipment lie adjacent to rivers and streams with adronomous fisheries. Why would others be allowed the freedom to enjoy and use motorized things and miners excluded from that right? Read below and I believe the strongest argument against Senate Bill 838 and all other subsequent supporting Bills actually has no need to argue mentioning mining at all. Currently all the argument against 838, by the mining community, was an attempt to show mining causes no harm etc......Or that the Bill takes away ones ability to mine effectively..... (Takings). I propose we ought to formulate opposition to the Bill by merely focusing on the unconstitutionary nature of the Bill. If mining were to become a subsidiary argument to combat the Bill I have Oregon's Water Rights Document that supports ( and even promotes) mining utilizing Oregon's waterways. But I believe the quickest way to an end supporting motorized activites (including mining) is to simply focus on Section 20.

OREGON ARTICLE I......*BILL OF RIGHTS
*******
Section 1. Natural rights inherent in people. We declare that all men, when they form a social compact are equal in right: that all power is inherent in the people, and all free governments are founded on their authority, and instituted for their peace, safety, and happiness; and they have at all times a right to alter, reform, or abolish the government in such manner as they may think proper.

Section 20. Equality of privileges and immunities of citizens. No law shall be passed granting to any citizen or class of citizens privileges, or immunities, which, upon the same terms, shall not equally belong to all citizens.


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Currently I am open to spearheading such a separate battle; anyone else out there willing to join in? I really need someone schooled in Oregon law and Oregon Court proceedings. I would think there may be some legal expert who would like to help take this on.

PM me if you feel you have info that would benefit meeting my request.

Bejay

 

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[Bejay]

When Oregon was made a State the Federal Government never gave the water to the State. The Feds kept the water for the people....the water belongs to the people and is even Granted to the miner. However the State was given the right to regulate the equitable use of the water...so that no one person or persons could use it all. The exception to the rule, that I know of, is where the use is taken to supply a benefit to the public in general. Such as "drinking water supply and hydro/flood dams to some extent.....as the water continues to flow except for possibly lakes with no outlet.

Tribal issues are most likely a "treaty" issue.

Bejay

http://www.oregon.gov/owrd/PUBS/docs/aquabook.pdf


Gold Mining: Frequently Asked Questions
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Will I need authorization from Oregon Water Resources Department to use water for my mining activity?
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In order to divert and use the waters of Oregon, you must first obtain authorization, such as a permit or limited license, from the Water Resources Department. *
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In-channel mining activities that affect, but do not divert, water do not generally require a water use permit.* This would include some common mining activities such as using a sluice box or suction dredge within the wetted perimeter of the stream.
*
*
Which gold mining activities require authorization from the Water Resources Department?
*
Diversion of water for mining activities outside the wetted perimeter requires a water use authorization.* Examples of mining activities outside of the wetted perimeter include high banking or placer mining.* This type of activity generally requires the use of water to dislodge rock material or move sediment.* Since this involves the diversion and use of water, this type of mining would require a water right.

 

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[Assembler]

Deleted.

 

[Bejay]

So basically Senate Bill 838 was repealed by Senate Bill 3. Senate Bill 3 took on the task of stopping motorized mining along any "adronomous fish" waterways, and Senate Billi 3 in itself became an Act of Law. This action was done to avoid the "takings" challenges (as I read and understand the intent of repealing 838). Senate Bill 3 focused on the issue of transferring the "no motorized mining" into existing Water Quality Laws.....ORS 468B Chapters. Basically Senate Bill 3 does not apply to "nonmotorized" mining (avoiding the takings issue). Senate Bill 3 allows for applications for State dredge permits (again avoiding the takings issue). Senate Bill 3 focuses on protecting "endangered species", and "water" quality/habitat.

Thus the issue of achieving a positive outcome for motorized mining in and along Oregon's waterways, utilizing arguing against all the "environmental" issues, is right back to the beginning battle we saw in Calif. In Calif. the mining community always focused on arguing against the "protective environmental issues" that were constantly brought into the courtroom.

There is no doubt the States focus on keeping the arguments; "to close dredging and such" in their desired "playing field" and "Rules of Engagement". And I would admit that they have structured their "motorized anti mining" agenda to be very complex......which in turn keeps the mining community at bay. As I see and understand it, The Supreme Court, in order to take on the challenge, based on takings; would appear to be challenged by the issue of "valuable mineral discovery". It appears that until the miner achieves a "valuable mineral discovery" the takings argument is very ambiguous.....and even Oregon has adapted ORS to deal with that issue.

So what part of the Oregon Law banning the use of motorized mining on "endangered species waterways" eludes the whole issue brought forth "to protect" by the state. That is simply the: "allowing others the right to use motors". It is hard to believe it is that simple, but I believe it is extremely worthy of challenging the state on that one issue! But Oregon's own constitution says they can not single out users. All mention of "protecting endangered species/water quality" would have to apply equally.

Bejay

 

[Goldfinger450]

I'm damn tired of Over-reaching Oregon State Employee's, They FORGET that WE pay them to work for US, YET they treat us like cattle.

 

[winners58]

they had the SB838 study to improve permitting (albeit on their terms) well... they threw the baby out with the bathwater.

I think you are on the right track with "motorized mining"
The federal mining law authorizes mining, Oregon regulates mining through removal/fill and discharge/water quality
ORS 468B.050 is for a water quality permit, what if there is no discharge, it does not regulate motors for other dischargers.
it also does not regulate any other users for ESH, might find something about that in this paper on ESA and state NPDES programs

the NPDES 700pm is already certified they cant change it, DEQ will have rule making in November, my guess it will be in the application process
that you would have to agree to, DSL will also have rule making in Nov. for non-motorized above the 1cy in one spot/5cy per stream exemption
including gravity dredging and to change the rule making they just had for SB838

just an FYI of all the court cases the miners have not gotten our day in court, no proof of harm... only the preemption has been argued.

Not sure its as simple as you think,
isn't Oregon article 1. sec. 20 like the US 14th amendment sec. 1

Section 20. Equality of privileges and immunities of citizens. No law shall be passed granting to any citizen or class of citizens privileges, or immunities, which, upon the same terms, shall not equally belong to all citizens.

&

All persons born or naturalized in the United States and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside. No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.

 

[Bejay]

Yes the 14th is. But one must start at the bottom of the ladder and take on the State 1st. It is my understanding that all attempts would have to try to be resolved in the lower courts (state court system) before one could ever get to the higher courts. I guess I see it in a different perspective. The mining community is always attempting to get to the higher courts and bring forth justification for mining vs the State who contend they have a right to regulate for environmental issues that involve endangered species etc. Thus, in the end, even preemption does not completely trump the State's injection of permits and regulations.
But when you enter the Water Regs ORS you see that you are right back into the mining issue. One wants to stay away from that and only focus on motors.
Simply leave mining off the table and focus on the State's own Constitution. The argument to maintain the "status quo" and target one group of citizens would have to broaden to include outboard motor boats and other users. One can only imagine the huge amount of citizens who would fall prey to a broader expansion of affected users.

Addressing the: "just an FYI of all the court cases the miners have not gotten our day in court, no proof of harm... only the preemption has been argued." is so very true and also is so very frustrating. How long must it take to "get that day in court" if the arguments are so broad? My observation is simply: there is no end to "concerns" by the States, and "concerns" by State judges always allows for regulatory permitting by the States. Such "concerns" are always political in nature and allow for "interpretive" conjecture. "Water Quality" has so many definitions and that becomes obvious when one reads ORS 468B.

Evidently the mining community supports your position; as I have not found an open ear to help me formulate the challenge I would like to utilize.....and I have contacted many.

Unfortunately I have found it obvious that I will be simply unable (to old and health issues) or long gone before I can legally get back in the water. Kind of like the Agent Orange issue surrounding us Vietnam Vets who were exposed to the AO and we can't get any resolve by the VA......we will be long gone by the time the laws helping all us vets get remedied.

Yep...nothing is ever simple...but sometimes things can become more productive. I am not holding my breath. But I hear ya

Bejay