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Is A Permit Needed For Highbanking In California ?


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Why the "confused" emoticons? The ban on using mechanical devices to recover gold is in place and has been for quite some time. Miners, myself included, have fought against this regulation and spent millions through various organizations since the beginning. We took it all the way the The Supreme Court, with the help of The Pacific Legal Foundation. But at that level the court refused to hear it; which is not uncommon given their case load.

Just because someone got away with whatever means they used doesn't mean you won't get cited, or that the regulation is not in effect.

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1 hour ago, Jim_Alaska said:

Why the "confused" emoticons? The ban on using mechanical devices to recover gold is in place and has been for quite some time. Miners, myself included, have fought against this regulation and spent millions through various organizations since the beginning. We took it all the way the The Supreme Court, with the help of The Pacific Legal Foundation. But at that level the court refused to hear it; which is not uncommon given their case load.

Just because someone got away with whatever means they used doesn't mean you won't get cited, or that the regulation is not in effect.

I'm still looking for the California law that banned "mechanical devices to recover gold".

I'm pretty good at finding laws and I'm "confused" how you found a law that I can't find and why you won't point us to where that law can be read.

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Clay, the following is a copy and paste of the response to a miners inquiry to CFW about this situation. Notice that the response includes the Fish & G. Code numbers. I have boldened the part about prohibition near the end of CFW reply.

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"Thank you for your questions. You ask, for example, about what you refer to as the 300-foot rule and how it relates to motorized mining equipment. You also ask if it would be lawful to “use a water pump to pump water from the river to a highbanker more than 300 feet from the river.” Further, you ask if use of the pump is the problem or the water returning to the river. Finally, you mention you have a place to set up your highbanker more than 300 feet from the river where the pumped water would not run directly back to the river. We hope the following information is helpful.

Use of vacuum or suction dredge equipment is currently prohibited by statute in California rivers, streams, and lakes. (Fish & G. Code, § 5653.1, subd. (b); see also Id., § 5653, subds. (a), (b).) Use of any such equipment is also currently defined by statute in much broader terms than traditional suction dredging. Current California law defines use of vacuum or suction dredge equipment to mean the “use of a mechanized or motorized system for removing or assisting in the removal of, or the processing of, material from the bed, bank, or channel of a river, stream, or lake in order to recover minerals.” (Id., § 5653, subd. (g).) This definition, importantly, and the two code sections just mentioned “do not apply to, prohibit, or otherwise restrict nonmotorized recreational mining activities, including panning for gold.” (Ibid.) Finally, section 5653 of the Fish and Game Code states, “It is unlawful to possess a vacuum or suction dredge in areas, or in or within 100 yards of waters, that are closed to the use of vacuum or suction dredges.” (Id., § 5653, subd. (e).) We assume your mention of a 300-foot rule is a reference to this latter prohibition.

Turning to your questions, possession of your highbanker more than 100 yards from a California river, stream, or lake would not be a violation per se of Fish and Game Code section 5653, subdivision (e). As to the use of a motorized pump to pump river water to the highbanker more than 100 yards from the river, the principal issue relevant in the first instance under the two controlling sections of the Fish and Game Code is not use of the pump or the water returning to the river. The relevant issue is the source of the materials you would process in the highbanker and the purpose. This issue is highlighted in the portion of the definition quoted above. That definition speaks, in relevant part, to the use of motorized or mechanized equipment to remove or assist in the removal of, or the processing of, “material from the bed, bank, or channel of a river, stream, or lake in order to recover minerals.” (Fish & G. Code, 5653, subd. (g).) To the extent you propose to remove and process material from the bed, bank, or channel of the river to recover minerals, including gold, and to use a motorized water pump and highbanker as part of that operation, that activity is currently prohibited and subject to citation under section 5653 of the Fish and Game Code. That the highbanker would be used as part of the mining operation more than 100 yards from the river would not make overall operation lawful.”


Chief David Bess
Law Enforcement Division
California Department of Fish and Wildlife

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I don't see anywhere in the CDFW reply you posted where they said highbanking or pumping water from the stream to your highbanker was a problem. In fact they say just the opposite.

CDFW said this in their reply (CDFW quotes in red):

possession of your highbanker more than 100 yards from a California river, stream, or lake would not be a violation per se of Fish and Game Code section 5653, subdivision (e).

As to the use of a motorized pump to pump river water to the highbanker more than 100 yards from the river, the principal issue relevant in the first instance under the two controlling sections of the Fish and Game Code is not use of the pump or the water returning to the river.

Here is the CDFW's sticking point. IF you source the materials for processing in your highbanker from the stream or lake that would be a violation of 5653.

The relevant issue is the source of the materials you would process in the highbanker and the purpose.

If you aren't going to be processing material from the "bed, bank, or channel of the river" you are not subject to the restrictions of 5653.

The 5653 dredging law is specifically about dredging in a stream or lake. Not a thing in there about highbanking or processing material sourced from outside of the stream bed. Nothing in there about moving water from the stream bed. Nothing in there about pumping water out of the stream. I've already posted the California laws for highbanking. I've already posted the laws about riparian stream use. There are already laws that govern these activities.

There is a basic principle of law that says existing laws are never to be assumed to be repealed by implication. In other words unless a new law spells out that the old law is being replaced the old law is still in effect. In this case since there is already a law about processing minerals out of stream a newer law that doesn't specifically repeal that law and doesn't even mention processing materials out of stream can't have changed the existing law.

So now I've given you California State law governing and permitting out of stream placer mining, California State law governing and permitting riparian rights to stream water and you have the CDFW response specifically stating the issue isn't about highbanking or pumping water but about where you get the minerals you are going to run through your highbanker.

I'm still puzzled why you would think any of this means highbanking is outlawed?

 

 

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Clay, your argument is not with me. I post the information I have and state my personal experiences in this 13 year fight with authorities. Like I said, 13 years has passed; this is not new stuff just because it is new to you personally. It has effectively shut down mining in CA for that length of time.

You asked me to point you to where the law can be read and I did that.

I am sorry for being so abrupt, but I have nothing to prove here. You are free to take this up with the appropriate authorities and pose your arguments to them. We did, all the way to the supreme court.

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10 hours ago, Jim_Alaska said:

Clay, your argument is not with me. I post the information I have and state my personal experiences in this 13 year fight with authorities. Like I said, 13 years has passed; this is not new stuff just because it is new to you personally. It has effectively shut down mining in CA for that length of time.

You asked me to point you to where the law can be read and I did that.

I am sorry for being so abrupt, but I have nothing to prove here. You are free to take this up with the appropriate authorities and pose your arguments to them. We did, all the way to the supreme court.

No arguments Jim, just facts. I'm not trying to "win" anything here. I've been in this business decades before the dredge moratorium in California. I first dredged in Californisa in 1973. I was personally involved in gathering support in the mining industry for California dredgers. I've been writing about these California mandates and mining law in general for more than 15 years. None of this is new to me.

I know you have miners best interests at heart Jim, I don't have any personal animosity towards you. In fact I've found your posts to be informative and caring. The fact you seem to want to apply the dredge permitting scheme to all placer mining in California is an error on your part. We all make errors.

The only reason I pursue this issue with you is that you keep misinterpreting the California laws on highbanking. I'm not blaming you personally but these kind of misunderstandings have led to a lot of California small miners actually believing highbanking is prohibited in California. That's not the case as I have demonstrated and the CDFW made clear in their reply to the placer miners questions.

Spreading this type of misinformation hurts small miners only. The big mining companies find these type of claims of mining restrictions amusing. I find it harder and harder to get them interested in supporting small miners issues just because of these constant unsubstantiated rumors and misunderstandings. Many of these mining companies were ready to stand by dredgers when the moratorium began but virtually all that sentiment has been drained by the ignorant actions of a few in the small mining activist community.

I'm not pointing a finger or blaming you Jim but I am calling out the errors in your theory about the banning of highbanking. Please reread my posts, I think you might come to a better understanding of why I'm interested in setting the record straight. It has nothing to do with argument and everything to do with educating miners about mining law.

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It’s pretty simple Clay. Most small miners using a highbanker want to process bank material. I sold hundreds of highbankers, and nearly all were sold with 100 foot or less of hose. The most popular packages use 50 feet, and smaller ones 25 feet. It was a rare person that might buy 100 feet or more of hose.

The goal is to get away from filling buckets and carrying them to a sluice box set in the creek. You set the pump near the water, pump up the bank, and dig away. It’s literally called highbanking. When small miners talk about highbanking this is what they mean, and that’s effectively been made illegal in California. Seems to me Jim is talking about what most of us understand highbanking to be, and you are talking about something else.

https://www.keeneeng.com/pamphlets/intoSlucing.html

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Unless there is something else I'm missing here, it looks to me that the use of the water is not the issue (assuming you use a settling pond before returning the water to the source), it's the source of the material and the method used to extract them. From what I interpret, if you're 100 yards or more from the water source, you can use a highbanker as long as you don't use mechanical means to take your MATERIAL from that same water source. I would also expect that you would have to do whatever restoration work that is required.

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Interesting topic it seems that California has similar rules to Tasmania. Rules are in place for the minority that given a free hand will trash the environment. For the rest of us this is an unfortunate fact we must live with. Tasmania allows river sluices to be used, but when there is no flow doesn't  allow the use of a battery powered bilge pump. Like politics we are catering to the lowest common denominator.

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  • 1 month later...

It depends on a lot of different things… 

California has rules, regulations and even REAL laws to ensure the state and local agencies can shut down any mining activity they choose to.  I’m gonna assume you’re on public land and you’ll need to find out which agency is managing your particular parcel to find out what they are going to require… if you’re drawing water from or discharging into a creek, check with the local water agency… believe it or not, state law is not always enforced by some rural counties…

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