Oregon Dredging - Where can I go thats open?

[Sticks]

Not sure if I mentioned this but the claims are mostly below the 2,000 ft elevation level so during the winter when it snows it is usually gone pretty quickly. You can sluice year round (I think) Or you can run something like this J.O.G. Mining I'm trying to get one of these for this winter. Thing looks awesome huh? As long as your not working in the water you can run this. However you may need a 600 permit from DEQ $50 I think. Personally I agree with above posts on your rights to mine. but DYODD If you join that club PM me and I will tell you right where to go where something like this would do well right out of the gate. I don't sell these nor do I have any stock in them, I just saw a great machine and thought that I would share the link with the rest of you. Best to you all.

 

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[KRIKITTS]

Get the 2014 CLAIMS REPORT and find some places to check out...helps support the cause too!

http://westernminingalliance.org/wp-content/uploads/2012/10/WMA-November-2014-Newsletter.pdf

has a pretty good dredging story from some old boy in it too...

 

[Bejay]

Unfortunately this kind of "nonsense" is what has led the dredging community down a path of self destruction. Read State of Oregon: Waterway Authorizations .....it lists exactly what DSL determines to be under their authority. Pay attention to what DSL stands for: Division of State Lands....NOT Division of Federal Lands. Pay close attention to the paragraph that stipulates the State of Oregon admits to what the Feds gave them authority to: pertaining to the Waterways and Water!

"The people of Oregon are the owners of the submerged and submersible land ("beds and banks") underlying all navigable and tidally-influenced waters. In most cases, this (limited) ownership, which was granted by the federal government when Oregon became a state, extends to the line of ordinary high water or high tide." (Note the State was GRANTED...there is the important word that also applies to the miner.....as the miner was GRANTED as well!)

"The State of Oregon, through the State Land Board and Department of State Lands, oversees the submerged and submersible lands under the territorial sea (i.e., oceanward to the three mile limit), tidally influenced land, and the non-tidally influenced beds and banks of 12 rivers and a number of lakes in the state."

"State-owned waterways are commonly termed "navigable." When Oregon became a state in 1859, all the land underlying waterways that were used, or could have been used, in their natural condition to transport people and goods, became state-owned. However, specific waterways, or portions, that met this navigability standard were not identified. State law authorizes the State Land Board to determine if a waterway is navigable for title."

Then one will also want to understand that a State can not legally "determine" mining methods nor can they LIMIT a number of permits. The Rhinehart case in Calif will explain this in further detail.

Of course dredgers want to simply dredge and not face the wrath of a State............so dredgers are faced with two choices. Either go along with a wrongful requirement or allow themselves to become contractually obligated to the State. A tough choice but one each and every miner must come to grips with.

Sad but true!

However the miner has a Federally GRANTED right. And a Grant once given is a contract that can not be taken away.....and there is case law to support this statement! So DSL emphasizes THEIR GRANT.......so how is it they can deny the miners GRANT?
Bejay

 

[Bejay]

From the 2010 Oregon Law Book:
537.334 Findings.
The people of the State of Oregon find and declare that:
(1) Public uses (of water) are beneficial uses.
(2) The recognition of an in-stream water right under ORS 537.336 to 537.348 shall not diminish the public’s rights in the ownership and control of the waters of this state or the public trust therein. The establishment of an in-stream water right under the provisions of ORS 537.332 to 537.360 "shall not take away or impair any permitted, certificated or "decreed right" (do you suppose the Federal Grant is a decreed right?) which [" is a legislative grant, and being given by act of congress, is equivalent to a patent from the United States to the same."] to any waters or to the use of any waters vested prior to the date the instream
water right is established pursuant to the provisions of ORS 537.332 to 537.360." [1987 c.859 §3]
537.335
Wow....that is pretty dynamic I'll look further
Then on page 152:
APPROPRIATION OF WATER FOR MINING AND ELECTRIC POWER
UNDER 1899 ACT
541.110 Use of water to develop mineral resources and furnish power. The use of the water of the lakes and running streams of Oregon for the purpose of developingthe mineral resources of the state and to furnish electric power for all purposes, is declared to be a public and beneficial use and a public necessity. Subject to the provisions of the Water Rights Act (as defined in ORS 537.010), the right to divert unappropriated waters of any such lakes or streams or such public and beneficial use is "granted".
NOW NOTE THAT THE ABOVE REFERENCES THE Oregon Water Law of 1899. IF YOU GO TO THE SWOMA SITE AND LOOK UP THE ACUTAL WATER LAW OF 1899 YOU WILL BE VERY SURPRISED OF YOUR FINDINGS!
========================================================================

30 U.S. Code § 51 - Water users’ vested and accrued rights; enumeration of uses; protection of interest; rights-of-way for canals and ditches; liability for injury or damage to settlers’ possession
Current through Pub. L. 113-100. (See Public Laws for the current Congress.)
US Code
Notes
Updates
Authorities (CFR)
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Whenever, by priority of possession, rights to the use of water for mining, agricultural, manufacturing, or other purposes have vested and accrued, and the same are recognized and acknowledged by the local customs, laws, and the decisions of courts, the possessors and owners of such vested rights shall be maintained and protected in the same; and the right-of-way for the construction of ditches and canals for the purposes herein specified is acknowledged and confirmed; but whenever any person, in the construction of any ditch or canal, injures or damages the possession of any settler on the public domain, the party committing such injury or damage shall be liable to the party injured for such injury or damage.

Bejay

 

[Oakview2]

[h=2]Summary:[/h]

• Section 242 of Title 18 makes it a crime for a person acting under color of any law to willfully deprive a person of a right or privilege protected by the Constitution or laws of the United States.
  For the purpose of Section 242, acts under "color of law" include acts not only done by federal, state, or local officials within the their lawful authority, but also acts done beyond the bounds of that official's lawful authority, if the acts are done while the official is purporting to or pretending to act in the performance of his/her official duties. Persons acting under color of law within the meaning of this statute include police officers, prisons guards and other law enforcement officials, as well as judges, care providers in public health facilities, and others who are acting as public officials. It is not necessary that the crime be motivated by animus toward the race, color, religion, sex, handicap, familial status or national origin of the victim. The offense is punishable by a range of imprisonment up to a life term, or the death penalty, depending upon the circumstances of the crime, and the resulting injury, if any.

TITLE 18, U.S.C., SECTION 242

• Whoever, under color of any law, statute, ordinance, regulation, or custom, willfully subjects any person in any State, Territory, Commonwealth, Possession, or District to the deprivation of any rights, privileges, or immunities secured or protected by the Constitution or laws of the United States, ... shall be fined under this title or imprisoned not more than one year, or both; and if bodily injury results from the acts committed in violation of this section or if such acts include the use, attempted use, or threatened use of a dangerous weapon, explosives, or fire, shall be fined under this title or imprisoned not more than ten years, or both; and if death results from the acts committed in violation of this section or if such acts include kidnaping or an attempt to kidnap, aggravated sexual abuse, or an attempt to commit aggravated sexual abuse, or an attempt to kill, shall be fined under this title, or imprisoned for any term of years or for life, or both, or may be sentenced to death.
  

 

[Bejay]

Well Oakview2...The 18 USC 242 was used as a threat prior to the Oregon Legislative action pertaining to the dredge permit issue. To my knowledge such action to challenge has not been undertaken.

Often States pass laws that conflict with Federal Laws and even the Constitution. It takes lengthy "correct" applications of "Challenge" to succeed at changing. More often than not those who want to challenge such issues fail to hit the "bulls eye". More often than not such challenges are muddled with "sidebars" if you will.

The Rhinehart case attorney has stuck to a specific issue and not muddled the case with "sidebar" issues. A specific Tactical approach can either win or lose on the simplest points of law. IMHO

But take note that the Rhinehart case is State of Calif Law. The case does not set a precedent that can be carried as such to other States. BUT the tactical approach can be utilized in another State by any other miner(s). [As I understand the issue]

That said: Mr Rhinehart has spent a considerable amount of funds........and I believe any other similar case can utilize the vast amount of legal work that has been done. Whether by Mr Rinehart's current attorney or another of choice if needed.

As often is the case: it is easier to talk the talk than it is to walk the walk.

Bejay

 

[rodoconnor]

WOW. Death Penalty!! I would say that they meant for Title 18 to have some teeth in it .

 

[Oakview2]

"Often States pass laws that conflict with Federal Laws and even the Constitution. It takes lengthy "correct" applications of "Challenge" to succeed at changing. More often than not those who want to challenge such issues fail to hit the "bulls eye". More often than not such challenges are muddled with "sidebars" if you will."

This is the heart of the Rhineart challenge, prempting federal law, by state statue. There is tons of federal case law supporting preemption , and hopefully their will be California case law, now Oregon miners either need to bring suit under the same premise, or get a constitutional sheriff and a DA that will start issuing supeonas for your legislators. My friends have their first hearing on Wed, if this case is either won or dismissed, we hope to have the DA issue warrants for Fish and Game and Forrest Service Law Enforcement. I am not and attorney, but law enforcement is not above the law and should answer for their actions.

 

[Bejay]

All those miners in Calif. might want to give consideration to this: Nice info that may be of use.....worth saving.

California Civil Code of 1873

Effective January 1, 1873, water appropriators were given the option under California Civ. Code Sections 1410-1422 to file their water claims with the county recorder to preserve priority. Such filing officially dated the water right as of the filing date. If no filing was made, the water right was still valid, but dated back to the time the first substantial steps were taken to put the water to beneficial use. These options remained in effect in California until 1914.

In Wells v. Mantes, 99 Calif 583, 584, 34 Pac. 324, (1893), the court ruled that an appropriation completed without complying with the provisions of the Civil Code had priority over one initiated pursuant to the Civil Code, but after the completion of the nonstatutory appropriation.

In Duckworth v. Watsonville Water & Light Co., (170 Calif. 425, 432, 150 Pac. 58, (1915), the court stated:

"It has long been settled in this state that an appropriation under the [civil] code divests no existing private right, that its effect is merely to give preference over a subsequent appropriator or diverter who takes under no other right, or title, and to fix the date of the posting of the notice as the inception of the claim under it."

In Haight v. Costanich, 184 Calif. 426, 431, 433-434, 194 Pac 26; (1920,) on the question as to whether the Civil Code destroyed the doctrine of relation back for nonstatutory appropriators, the court stated:

"But the code section by its terms destroys the right of relation back of an appropriator who does not comply with the code, only as to a subsequent appropriator who does. As to all others, his rights are not affected by the code provisions and are to be determined by the law governing the subject of appropriations as it exists independently of the code."

The Water board does have the right to make rules and regulations. Any action brought in an administrative court will be an expensive and time consuming fiasco. The miners right to the water is prior to the Water Boards right to administer that water. A proper venue is a Superior court not an administrative court.

One should study these cases:

In Kimball v. Gearhart, 12 Calif. 27, 31, (1859), the court ruled that the mere construction of a ditch with the intention of appropriating water from a stream is not sufficient, in itself, to establish a right to the use of such water. The title is perfected when the appropriation is complete. When completion of the appropriation occurs, then the priority dates, by relation, from the beginning of the work, provided that the necessary prerequisites have been fulfilled. (See also Hewitt v. Story 64 Fed. 510, 514-515- C.C.A. 9th (1894.)

In Duckworth v. Watsonville Water & Light Co., 170 Calif. 425, 432, 150 Pac., (1915), the court stated in reference to the necessity of diligence and good faith in completion of the appropriation and evoking the doctrine of relation back:

"The principles established in the cases cited are founded in reason. The doctrine is that no man shall act upon the principle of the dog in the manger, by claiming water by certain preliminary acts, and from that moment prevent others from enjoying that which he is himself unable or unwilling to enjoy, and thereby prevent the development of the resources of the country by others."

Yuba River Power Co. v. Nevada Irr. Dist., (207 Calif. 521, 525, 279 Pac. 128, (1929) - Control of the water by taking it from the source of supply is necessary in exercising an appropriative right.

In Parks Canal and Mining Co. v. Hoyt, 57 Calif, 44, 46, (1880) the court affirmed that a water right does not attach unless one has acquired control of the water. (See also Bader Gold Min. Co. v. Oro Electric Corp. 245 Fed. 449, 451-452, C.C.A. 9th, (1917).


In Lux v. Haggin, 69 Calif. 225, 255, 338-339, 417-419, 4 Pac. 919, 1984; 10 Pac. 674, (1886) held, on a principle called "absolute territorial sovereignty." This assumed that the "owner" of the public domain was the U.S. (for the purposes of disposal.) As such, it could control the distribution of unappropriated waters on public land, even if this abrogated unvested riparian rights to those lands. It was only until after public land was disposed of that riparian rights inhered.

The court stated:

"It has often been held by the court and its predecessors that a grant of a tract of land bounded by a river or creek not navigable conveys the land to the thread of the stream. And from a very early day the courts of this state have considered the United States government as the owner of such running waters on the public lands of the United States, and of their beds. Recognizing the United States as the owner of the lands and waters, and as therefore authorized to permit the occupation or diversion of the waters as distinct from the lands, the state courts have treated the prior appropriator of water on the public lands of the United States as having a better right than a subsequent appropriator, on the theory that the appropriation was allowed or licensed by the United States. It has never been held that the right to appropriate waters on the public lands of the United States was derived directly from the State of California as the owner of innavigable streams and their beds. And since the act of Congress granting or recognizing a property in the waters actually diverted and usefully applied in the public lands of the United States, such rights have always been claimed to be deranged by private persons under the act of Congress, from the recognition accorded by the act, or from the acquiescence of the general government in previous appropriations made with its presumed sanction and approval."

That is simply what what the law says. The California Constitution does make a few restrictions on that right though. Here they are straight from Article X, Section 2 of the California Constitution:

Quote The right to water or to the use or flow of water in or from any natural stream or water course in this State is and shall be limited to such water as shall be reasonably required for the beneficial use to be served, and such right does not and shall not extend to the waste or unreasonable use or unreasonable method of use or unreasonable method of diversion of water.


You might find it interesting that the Forest Service laws also specifically allow for water use for mining. The water grant in the 1866 Mining Act is found all throughout Federal law. Every agency and department is bound by that law.


Quote USC TITLE 16 > CHAPTER 2 > SUBCHAPTER I > Section 524

Section 524. Rights-of-way for dams, reservoirs, or water plants for municipal, mining, and milling purposes

Rights-of-way for the construction and maintenance of dams, reservoirs, water plants, ditches, flumes, pipes, tunnels, and canals, within and across the national forests of the United States, are granted to citizens and corporations of the United States for municipal or mining purposes, and for the purposes of the milling and reduction of ores, during the period of their beneficial use, under such rules and regulations as may be prescribed by the Secretary of the Interior, and subject to the laws of the State or Territory in which said forests are respectively situated.

All this demonstrates that you have a right to the water needed to mine the mineral estate (1866). This right precedes the State Water Resources Control Board (SWRCA) right to determine who can use the water (1914). The SWRCA themselves admit that in their own literature.

Court decisions and the law respect the right to the water grant found in the 1866 Act. The Water Resources Control Board would like you to believe otherwise. They wish to pretend that their program regulations can override all those Federal and State laws and court decisions. They have no right to control mining on Public lands .

If miners and their organizations get fooled into believing that the SWRCA has some power to control mining THAT will be something to worry about. The issue is not the ticket itself but the denial of access to the mineral estate grantees rightful prior appropriation of the water "reasonably required for the beneficial use to be served".

To fight this nonsense (that I mentioned earlier in this thread)all miners need to be aware of their water grant. Getting a ticket will prove nothing. Being stopped while in the act of using your prior right to the water will be the issue that topples this out of control "program". It might well create the kind of judgement that would get dredgers back in the water in other States such as Oregon if the research was done for Oregon.

As you know Oregon requires a high banking permit.......oooppppssss!







Bejay

 

[Oakview2]

Also the California Constitution recognizies California Miners as a beneficial user of water, and are granted first right over agriculture or any other concern. But law and regulations do not appear to effect the ruling class, just us peasants.

 

[Bejay]

Also the California Constitution recognizies California Miners as a beneficial user of water, and are granted first right over agriculture or any other concern. But law and regulations do not appear to effect the ruling class, just us peasants.

That is what is meant by this:


"California Civil Code of 1873"

"Effective January 1, 1873, water appropriators were given the option under California Civ. Code Sections 1410-1422 to file their water claims with the county recorder to preserve priority. Such filing officially dated the water right as of the filing date. If no filing was made, the water right was still valid, but dated back to the time the first substantial steps were taken to put the water to beneficial use. [note: mining is the GRANTED beneficial use]

1866 Federal mining law preempted any such subsequent Calif Constitutional language. Realizing of course that when Calif was made a State water rights remained "the Publics" not the States.....although Navigable waterways were specifically given the State.

But you are right to mention the laws of this country don't seem to matter much to those who have Government oversight or Political agendas.

Bejay

 

[Hefty1]

That is what is meant by this:


"California Civil Code of 1873"

"Effective January 1, 1873, water appropriators were given the option under California Civ. Code Sections 1410-1422 to file their water claims with the county recorder to preserve priority. Such filing officially dated the water right as of the filing date. If no filing was made, the water right was still valid, but dated back to the time the first substantial steps were taken to put the water to beneficial use. [note: mining is the GRANTED beneficial use]

1866 Federal mining law preempted any such subsequent Calif Constitutional language. Realizing of course that when Calif was made a State water rights remained "the Publics" not the States.....although Navigable waterways were specifically given the State.

But you are right to mention the laws of this country don't seem to matter much to those who have Government oversight or Political agendas.

Bejay

Very possibly that they (politicians) because they don't have an interest in mining never learned about mining laws, or they were never taught about them.
They don't even know about them. But when you try to enlighten them about the mining laws, they don't want to hear about it. They don't want to be proven wrong.

 

[Bejay]

Many years ago I realized the "Tail Wags the Dog". Not sure how to overcome that other than "persistence"; trying to teach an old dog new tricks. Sometimes it seems to be like "trying to teach a pig to sing". Especially hard because one needs to get into a sloppy pig pen (in this case the political arena).....it frustrates the pig and it makes for an impossible messy task.....but miners have never shied away from mud/dirt!

Who wants to "teach a pig to sing"? I think it would be easier to teach a pig how to route out gold! The Rhinehart case is ever so important and every miner should support the cause there....lets hope the decision gets published. Hopefully the Rhinehart case will carry over into Oregon in some way.......I am hopeful!

I know I am tired of talking about it: Actions speak louder than words. Sometimes patience can be a great virtue though.



Bejay