HIGHBANKING AND POWERSLUICING IN CALIFORNIA, IS IT LEGAL?
By: Shannon Poe
American Mining Rights Association
When I first started mining back in the late 70’s as a child with my best friend and his father up in Oregon, I never envisioned I would be researching and writing about our legal rights to use water on gold claims to run a highbanker or face a fine of $10,000 per day. Daily, it seems we face more and more challenges from those who oppose us as miners trying to exercise our right to obtain the minerals on our validly and legally owned claims.
Dredging moratoriums, oppressive regulations, road closures and harassment by Government officials hired by the people, for the people. The last time we checked, public lands were owned by the public. Although, one would think the Government owns everything and we are sometimes allowed to access and work our claims as long as we rigidly follow the new regulations which seem to appear out of thin air on a daily basis. There are so many regulations they are enacting now, it takes an attorney and an hour of research on the internet each morning to keep up with them.
So this begs the question of whether or not one can run a highbanker or powersluice on their claim (or as a part of a gold club, association or organization) in the State of California. The Government would have you believe you must submit a plan of operation in excruciating detail of exactly what you are going to do on your claim. Write down each plant variety you propose to kill with your murderous shovel. Describe in detail how you plan to pollute the river with the same gravels you are moving 10 feet back into the very stream it was just taken out of. Then apply for a permit, which is a minimum of $1120.00, wait months and months for an inspection of said grounds by an environmental quality inspector, only to find out the water board refuses to issue permits.
What we must all understand is those who oppose mining are having a very hard time circumventing the 1872 mining law and all its protections and provisions for the miners. The only real way they can attack mining and public lands actively is via regulation. To understand the big picture, keep in mind there are those who do not wish the public to be self-sufficient, have independence from Government, obtain the minerals in the ground or even be able to make a living off of the land owned by the people.
First, one must understand what a gold claim is and how it is looked upon by our Governing agencies and entities. A gold claim is ownership of the minerals contained within the boundaries of a legitimately located, filed and recorded claim and the right to obtain those minerals. Meaning, if you found an area of public lands which there was no existing claim, or any other reason (historical site, power withdrawal etc…) which would prevent a claim from being filed and you performed your legal responsibility of “locating” the claim, then filed that claim with the BLM, then recorded that claim in the county in which it was located………….the claim is valid, legal and recognized as such with both the State and Federal Government. OR, if you belong to a gold club, Association or group which validly owns gold claims such as GPAA, AMRA or many others.
So now you own a claim (or are a member of a gold group which does), and this gives you certain rights under our laws. Riparian rights. Riparian rights are essentially the same as private property rights and grant the owner exclusive rights to the water on that property or claim. Because of this, agencies cannot tell you that you cannot use or pump that water for an individual purpose, such as running a highbanker or powersluice to obtain gold. Where they (think EPA and Water Boards) believe they also have standing, is with what they are trying to label as pollution from the discharge. They are claiming the gravels you move 10’ from their original location are pollutants. They claim we stir up mercury, dump gasoline directly on frogs, fish and salamanders, clear cut a hundred acres to move one rock and are just plain mean people. We strongly disagree with labeling highbanking discharge as being a pollutant as they have provided no factual science to back up their contention.
Under the riparian principle, all landowners whose property is adjoining to a body of water have the right to make reasonable use of it. Courts have already recognized gold claims as real property so our stance is you have right to use the water and entities such as Water Boards do not have the right to require you to purchase an expensive permit (minimum of $1120.00). Under 30 USC § 26, it states, “The locators of all mining locations on the public domain so long as they comply with the laws of the United States, and with State and local regulations not in conflict with the laws of the United States governing their possessory title, shall have the exclusive right of possession and enjoyment of all the surface included within the lines of their locations…”. In US v. Shumway (9th Circuit Court of Appeals; No. 96-16480) “The owner of a mining or mill site claim does not need a patent, or a vested right to issuance of a patent, to possess and use the property for legitimate mining or milling purposes. A mining or mill site claim is ‘property in the fullest sense of the word.’” Here is another “Except as otherwise provided, all valuable mineral deposits in lands belonging to the United States … shall be free and open to exploration and purchase, and the lands in which they are found to occupation and purchase, by citizens of the United States … under regulations prescribed by law, and according to the local customs or rules of miners in the several mining districts, so far as the same are applicable and not inconsistent with the laws of the United States.” 30 U.S.C § 22. And another “The national forests are to be open for entry for all proper and lawful purposes, including that of prospecting, locating, and developing the mineral resources thereof.” 16 U.S.C. § 478.
Real property according to the courts, and open to the public. Riparian rights also do not require permits, licenses or government approval. We reviewed the Water Board website and they explain Riparian Rights as “A riparian right entitles the landowner to use a correlative share of the water flowing past his or her property. Riparian rights do not require permits, licenses, or government approval,
but they apply only to the water which would naturally flow in the stream. Riparian rights do not entitle a water use to divert water to storage in a reservoir for use in the dry season or to use water on land outside of the watershed. Riparian rights remain with the property when it changes hands, although parcels severed from the adjacent water source generally lose their right to the water.”
AMRA’s stance on this is clear. We believe the miners have a fundamental and legal right to use pumps for the purpose of obtaining the minerals in validly owned claims in the State of California. We all must make our own decisions and we are simply giving our opinion and not legal advice. Keep in mind, they do not like us to mine. We, like so many we have talked to are running highbankers and powersluices. If you or someone you know is harassed, cited or told you cannot run a pump, contact us at firstname.lastname@example.org
AMRA is a California based Non-profit advocacy Association by miners, for miners and the public land access community. AMRA opens up all of its claims to members for a small donation which goes to your legal fund to defend miners and mining rights across America. AMRA is partnered with PLP, we are all fighting for you.
Join us at: https://americanminingrights.com/