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Gold miners sue Western states over ban of dredging equipment

Oregon is the latest state to face legal challenges that invoke the federal mining law of 1872

LOS ANGELES — The General Mining Law of 1872 promised Americans who went west that whatever gold or other precious minerals they found would be theirs for the keeping — the main driver of the California Gold Rush that fueled the nation’s great westward expansion.

Almost 150 years later, gold miners in the west, who now prospect mostly as a hobby, are invoking the same law to sue states over moratoriums on the use of suction dredge mining equipment.

Driven by environmental concerns that these motorized vacuums disrupt salmon habitat and affect water quality, California banned the practice in 2009. Oregon will do the same starting Jan. 1, 2016.

Miners are suing both states, arguing that their moratoriums on suction dredges to sift through gravel for specks of gold violate the federal mining law.

“It alleges that the state lacks power to prohibit mining on federal lands,” said James Buchal, a Portland, Oregon, lawyer who represents a consortium of gold miners in the lawsuits.

Miners scored a victory in California earlier this year when lower courts ruled in their favor, sending the case to the state Supreme Court, which has agreed to hear it.

“Essentially, miners are asserting they have a constitutional right to mine anywhere they want, which is ridiculous,” said Nick Cady, legal director of Cascadia Wildlands, a non-profit conservation group based in Eugene, Oregon. “This hobby mining group of a few hundred people are decimating salmon habitat.”

Environmentalists also argue that dredging raises the level of mercury in the water — some of it naturally occurring and some left over from more than a century of mining.

“This is about protecting salmon habitat and water quality,” said Forrest English, director of Rogue Riverkeeper, an Oregon non-profit that works to restore and protect water quality. “There are other places to mine. You don’t need to mine for gold in the stream bed … This is about the state being able to protect resources the state depends on. It’s public water.”

Tom Kitchar, president of the Waldo Mining District in Oregon’s Josephine County, calls the argument “a bunch of crap.” The county in the southwestern corner of the state has 904 registered mining claims, the most of any county in Oregon. Kitchar has 10 of those claims.

The moratorium “will destroy us,” he said, estimating a loss of at least $5 million a year in revenues for the county.

“Most of us work underwater,” Kitchar said. “Standing in water in a running river or stream, a shovel is not very effective ...  It makes it virtually impossible for the individual citizen miner to explore for and mine gold deposits found under much more than one to two feet of water.”

He said miners are well aware that dredging can disrupt salmon nests, known as redds.

“For that reason alone, we’re not allowed in the water when there might be fish eggs present,” he said.

Mining season runs from June 15 to Sept. 15.

“For nine months out of the year, we’re not allowed in the water, yet fishermen are allowed to walk around and crush the fish eggs,” Kitchar said. “Not one study has quantified provable harm.”

He scoffed at environmentalists’ claims that gold mining raises the level of mercury in streams.

“In the old days, miners used mercury to catch gold because gold sticks to clean mercury,” Kitchar said. “I’ve only seen one spot out of all the places I’ve ever dredged where there’s liquid mercury present.”

And while reports show that dredging can add mercury to rivers, Kitchar maintains that dredging also takes mercury out of the water.

“In some ways, it’s a non-issue they’ve glommed on to,” he said. “They just hate mining.”

Gold mining in Oregon began when migrants to the west who had missed out on the California Gold Rush tried their luck further north.

Despite the widespread use of suction dredges, placer miners (those who mine rivers rather than rocks) still pan for gold to see if the precious metal is present at different sites, but turn to motorized equipment to get the gold out.

Gold miners can make as much as $50,000 a year, but most make less.

“The mining industry is very small,” English said. “The number of gold mining jobs are less than 100.”

A California state survey showed that only 2 percent are commercial miners. The rest mine for recreation.

The federal mining law is still on the books but is “really a relic of the 19th Century that doesn’t apply in the modern context,” said Jonathan Evans, environmental health legal director with the Los Angeles-based Center for Biological Diversity, a non-profit dedicated to wildlife and environmental protection. “We recognize that water resources and fisheries like salmon are much more valuable than these small nuggets of gold.”

The Oregon Department of State Lands, one of the state agencies that issues mining permits, granted 479 permits in fiscal year 2015 ending June 30, down from a high of 2,409 in 2012, when miners rushed to Oregon to escape the California moratorium, said Julie Curtis, public information manager with the agency.

She declined to comment on the pending lawsuit.

But miners are buoyed by their court victory in California and hope the Oregon ban will be stopped.

“Telling a miner that they can only mine by hand (not even battery-operated equipment will be allowed) is like telling the owner of a three-bedroom house that, ‘Yes, you can still own your house and use it … You just can’t sleep there,’” Kitchar wrote in an e-mail. “We have been constantly attacked by local enviro organizations since the late 1980’s … NONE OF THIS has anything to do with protecting the environment. Ultimately, it’s about control of the land and natural resources.”

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