In California history, is there a more iconic figure than the prospector? The cries of “gold!” from Sutter’s Mill in 1848 drew legions of fortune-seekers from around the world, creating an economic boom that made the cause of statehood unstoppable. Indeed, the state seal includes the image of a prospector.
The search for precious metals has always required overcoming obstacles. Mark Twain offered personal testimony, in “Roughing It”: “As midnight was announced, fourteen men, duly armed ... proclaimed their ownership of (our claim) under the new name of the ‘Johnson.’ But ... our partner ... put in a sudden appearance about that time, with a cocked revolver in his hand, and said that his name must be added to the list, or he would ‘thin out the Johnson company some.’ ”
More than a century and a half later, prospecting remains popular. Thousands of Californians still venture into our high country in quest of gleaming nuggets.
But today, a new form of claim-jumping awaits them – an assault by the state on the gold-seekers and on federal authority.
The regulatory ambush targets the “suction dredge” that prospectors use to “pan out” their claims in streams and rivers. It’s a lawnmower-sized motorized suction hose which draws material from the streambed. A floating sluice box separates the valuable minerals from the gravel, which is redeposited back into the stream only after it has been cleaned of mercury, fishing weights and other heavy trash.
For decades, California allowed suction dredging, with regulations to safeguard the environment and to protect fish. In 2009, however, the Legislature upset this careful balance with a de facto ban. Officials cited environmental concerns, but prospectors countered that any problems could be addressed by updating the permitting system. Prospectors also argue that their pastime actually cleans streams and creates fish habitat.
The controversy recently came to a head at the California Supreme Court, in the case of Brandon Rinehart of Antioch. While prospecting in the Plumas National Forest, he was cited by state agents for using a suction dredge without a permit and hit with two criminal charges.
In court, he argued that the ban is pre-empted by the federal government’s 1872 general mining act, which allows prospectors to explore federal land and acquire rights to minerals they discover.
An appellate court sided with Rinehart, holding that if suction dredging is the only feasible way to mine his claim on federal property, the state’s permitting ban would be void.
But the California Supreme Court reversed. In a decision finalized last month, the court held that the state has not flouted the federal mining act. The justices contended that federal law is concerned with safeguarding mining claims – not with ensuring the right to use any particular mining instrument.
Because this was a dramatic misinterpretation, Rinehart – supported by independent, small-scale miners and enthusiasts statewide – is preparing an appeal to the U.S. Supreme Court in which he will ask that federal protections for prospectors be fully acknowledged.
He will argue that the federal law was designed to promote resource development by encouraging both the staking and working of mining claims. California’s prohibition on suction dredging frustrates that purpose, because no other method is effective on many claims, and the environment can be protected by responsible regulation; a blunderbuss ban isn’t needed.
The state Supreme Court’s decision was right about one point: “California was shaped by the search for gold.” It will be up to the Supreme Court of the United States to determine if the Golden State will remain true to its history.
Damien Schiff, a principal attorney with Pacific Legal Foundation, represents Brandon Rinehart in his forthcoming appeal to the U.S. Supreme Court. Contact Schiff at email@example.com.