State Can Limit Gold Mining Despite 9 Century Law

The glint of color that continues to change the face of California, 170 years after the Gold Rush | Photo: Nick Ares, some rights reserved

The California Supreme Court last week affirmed the state's right to protect its streams and lakes from mining pollution, and set limits on one of the nation's most controversial laws in the process.

In its August 22 decision, the Court found that the federal Mining Law of 1872 doesn't prevent the California state government from regulating mining on federal land. That's a blow to recreational mining advocates who often cite the 1872 law as protecting their right to extract minerals from public lands without government oversight.

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The basics of the court case are fairly straightforward. On June 16, 2012, a California game warden found Brandon Lance Rinehart using suction dredging equipment on an unpatented placer mining claim on public land in the Plumas National Forest. Rinehart didn't have a permit from the California Department of Fish and Game (now Fish and Wildlife) to either use that equipment or possess it in a closed area, and he was cited for two misdemeanors as a result.

Suction dredging is a process in which sediment is essentially vacuumed from a creek or riverbed, run through sluices to allow gold and other heavier sediment to settle out, then dumped back into the stream. The process can create serious problems for wildlife that live in the water, posing a special threat to salmon and trout that require gravel beds for spawning. The lighter sediment released by suction dredging can bury those gravels, rendering entire stretches of streambed unsuitable as spawning habitat.

Suction dredging also releases the heavy metal mercury from those sediments, which poses risks to both wildlife and people downstream.

A small suction dredging rig | Photo: Rocksinmyhead, some rights reserved

It would have been hard for Rinehart to get a permit for suction dredging that stretch of creek in the Plumas: The California Department of Fish and Wildlife hasn't issued any since 2009, when it issued a temporary moratorium on new suction dredging permits. The moratorium was put in place to give the state time to come up with a regulatory process that allowed some dredging while protecting salmon and limiting mercury pollution. Though that moratorium was originally set to expire this June, the Legislature removed that deadline when it became clear that more study was needed about which state agency had the authority to regulate streambed mining. The moratorium is still in place.

Rinehart chose to fight the citation in court, contending that the state of California had no authority to restrict suction dredge mining on federal land. He claimed that the federal Mining Law of 1872 protected the right of prospectors and miners to operate without interference on federal land, and that the suction dredge moratorium deprived him of the only economically feasible method for extracting gold from his claim.

The Mining Law of 1872, also known as the General Mining act of 1872, is one of the most controversial environmental laws currently on the American books. Written in a time of westward settlement, in which the federal government sought to foster extractive industries throughout the West, as a way of consolidating control of the land and encouraging further settlement. The law allows any U.S. citizen 18 years or older to stake a mining claim on federal land, and limits the cost of making that claim to $5.00 per acre, a price still in effect that was set in 1872. Under the Mining Law, miners are not obliged to pay royalties on any metals mined from public land, a considerable loss to the Treasury given the estimated $2 billion to $3 billion in minerals extracted from public lands each year.

A few laws passed since 1872, notably the Federal Land Policy and Management Act of 1976, which added a few common-sense requirements to the process of mining on public lands, including a requirement that miners pay for site reclamation once their mining activities are completed.

But overall, the Mining Law of 1872 stands as a quintessential piece of Libertarian legislation, and it has left more than a century of toxic environmental disasters in its wake. It's also a favorite of anti-environmental activists such as the Pacific Legal Foundation, which maintains that the Law preempts - overrides - any state or local laws that would mean tougher regulation of mining on federal land.

That's the argument that Rinehart brought to court with him. He didn't deny that he'd been suction dredging without permits: he claimed that the Mining Law of 1872, by preempting California law, meant he didn't legally need the permits.

In places like the Madre de Dios River in Peru, miners can dredge streams without pesky environmental regulations. | Photo: U.S. Forest Service

The trial court didn't buy Rinehart's argument, ruled it inadmissible, and sentenced him to three years' probation in 2013. Rinehart appealed. The Appeals court found some merit in his argument that California's de facto ban on suction dredge mining was an improper infringement on miners' rights, and that the Mining Law may in fact preempt the state's power to regulate mining. The Appeals court remanded the case back to the trial court in October 2014, ordering that court to give a full hearing to Rinehart's original argument.

The state of California asked the state Supreme Court to review the Appeals Court's decision, and last week's ruling was the result. The Supreme Court ruled that the Mining Law was never intended to preempt a state's power to regulate mining within its borders:

We conclude the state's moratorium is not preempted. The federal laws Rinehart relies upon reflect a congressional intent to afford prospecto

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