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November 28, 2012: Vol. 2, #11

The Voice of California's Rivers Since 1973

Features
2012 Accomplishments
A River Friendly Election
BLM Finalizes Wild & Scenic Recommendations
Interior Secretary Appoints FOR's Steve Evans To BLM Advisory Council

In Depth
In-River Minning: Legal Case Timeline

Alert

Take action for the San Joaquin

Departments
River Events: Tim Palmer - California Glaciers
show Jan 14 in Sacramento
River in the Spotlight: The North Fork Yuba
River Saving Tip: Use all those leaves

FOR’s 2012 Accomplishments…so far
By Bob Center, FOR Executive Director

This year has been a busy one for our rivers and for FOR!  Here is a quick summary of just some of our more notable accomplishments to date:

  • Built and led a coalition of 50 groups that stalled both legislation to drown the Wild & Scenic Merced River and efforts to permanently weaken the National Wild & Scenic River Act.
  • Introduced federal legislation to protect 89 miles of rivers in Southern California including Piru, Mono, Sespe, and Indian Creeks.
  • Blocked an attempt to rollback restoration of the San Joaquin River, which now reaches the sea after decades of exploitation. Salmon spawned in the reach above the restored section for the first time in fifty years.
  • Secured a mandate from the courts requiring the National Marine Fisheries Service to develop a scientific report requiring the Army Corps of  Engineers to implement fish passage past two Yuba River Dams.
  • Filed suit to stop the roll-out of poorly crafted in-river mining regulations and succeeded in extending the moratorium on suction dredging until effective protections for water quality and habitat are in place.
  • Convinced East Bay Municipal Utility District to remove a proposed New Pardee Dam on the Mokelumne River from their water supply plan.
  • Joined with dozens of organizations to stop the state from spending tens-of-billions of dollars to divert water from northern California rivers underneath or around the Delta to desert irrigators and urban sprawl.

We expect to be hard at work over this next month during the lame-duck session in Washington, D.C. to continue the fights to save both the Wild & Scenic Merced River and the San Joaquin River Restoration program.


Author Tim PalmerTim Palmer’s California Glaciers book tour comes to Sacramento on January 14th

SAVE THE DATE: On January 14, 2013 Friends of the River will host Tim Palmer in Sacramento (location to be announced) for a slide show of his latest book: California Glaciers.

Tim Palmer has written twenty-two books about the American landscape, conservation, adventure travel, and rivers. California Wild, a text and photographic book, won the Benjamin Franklin Award for the best book on nature and the environment in 2004. Palmer wrote the text for the Yosemite Association’s Yosemite: The Promise of Wildness, which
 received the Director’s Award from the National Park Service as the best book of the year in 1997. His other books include, Rivers of America, which features 200 color photos of rivers nationwide, Rivers of California, and Luminous Mountains, published by Heyday in collaboration with the Yosemite Association. Palmer has traveled extensively through the mountains of California by foot and on skis, with his canoe and whitewater raft, and in his well-equipped van.

Upcoming Dates: January 14th - Sacramento (location TBD)

 

River-Friendly Election Results
By Steve Evans

The November election results may mean more national efforts to protect Wild & Scenic Rivers in California. Several environment-friendly members of Congress were elected to substantially changed districts with important river resources, including:

24th Congressional District (Ventura, Santa Barbara, and San Luis Obispo Counties, and Los Padres National Forest) – Long-time river supporter Rep. Lois Capps was elected to this newly expanded Central Coast district. This increases the prospect for introduction of public lands legislation that could protect more than 200 miles of streams eligible for Wild & Scenic status from Piru Creek in the south to the Salinas River in the north.

27th & 28th Congressional Districts (Los Angeles County, Angeles National Forest) – Due to revised districts, the public lands in the San Gabriel Mountains will be represented by Rep. Judy Chu and Rep. Adam Schiff, two members of Congress who appreciate the value of public lands and rivers adjacent to the Los Angeles urban area. This will undoubtedly enhance prospects for the introduction of legislation to establish the San Gabriel National Recreation Area and provide Wild & Scenic protection for the San Gabriel River and other streams on public lands.

3rd Congressional District (Yolo, Colusa, Solano, Yuba, Lake, Glenn Counties, Mendocino National Forest) – Rep. John Garamendi was elected to a new district that shifted northward to include the southern portion of the Mendocino National Forest and thousands of acres of adjacent BLM lands. Garamendi is a former Interior Department official and a current member of the House Resources Committee, with a long history of supporting river protection. A top Wild & Scenic River protection priority in this district is Stony Creek and its tributaries, which drain the Snow Mountain Wilderness. Garamendi’s new district also includes the lower Yuba River and the Army Corps of Engineer’s troublesome-for-migrating-salmon Daguerre Point Dam.

6th and 7th Congressional Districts (Sacramento, Yolo Counties) – Rep. Doris Matsui, a long-time river supporter, was handily reelected to represent Sacramento. In the adjacent 7th District to the east, Auburn Dam proponent Dan Lungren was defeated by Ami Bera. This means that for the first time in decades, the entire American River Parkway and Wild & Scenic River will be represented by Congress members sympathetic to rivers and the environment.

2nd Congressional District (Marin, Sonoma, Mendocino, Humboldt, Del Norte, and Trinity Counties, and the Mendocino, Six Rivers, and Shasta-Trinity National Forests) – This northwest California district is home to some of the wildest rivers in California. Now including Trinity County, the new district possesses nearly a thousand miles of potential Wild & Scenic Rivers, including the upper South Fork Trinity River, the Mattole River estuary, and the Garcia River estuary. Jared Huffman, one of the best environmental advocates in the California Legislature, was elected to represent the new 2nd District and he has expressed keen interest in potential public lands legislation.

Unfortunately, the political prospects for river protection are little changed in the Sierra Nevada, which continues to be represented by some of the most anti-environmental members of the California delegation in Congress, including avid Auburn Dam proponent Tom McClintock. In addition, continued Republican control of the House of Representatives means that there will likely be ongoing difficulty passing environmental legislation in the House Resources Committee. But with new river-friendly members of Congress and the continued support of California’s Senators (Barbara Boxer and Dianne Feinstein), there will be more opportunities to seek legislative protection for rivers and streams on public lands from Los Angeles to Crescent City.


BLM Finalizes Wild & Scenic River Recommendations
By Steve Evans

The Bureau of Land Management (BLM) issued its final Bakersfield Resource Management Plan earlier this fall. In response to public comments, the agency doubled the number of streams it is recommending for Wild & Scenic protection from two to four. Carried through in the final document, were agency recommendations to protect as Wild & Scenic the San Joaquin River Gorge and North Fork Kaweah River. In addition, the final plan also recommends a short segment of the lower Kern River and Chimney Creek. Friends of the River members emailed more than 130 comments to the BLM urging more protection for Wild & Scenic Rivers.


Interior Secretary Appoints FOR's Steve Evans To BLM Advisory Council
FOR Staff

Friends of the River’s Wild & Scenic River Consultant, Steve Evans, was recently appointed to the BLM’s Central California Resource Advisory Council. The Council advises the BLM on the management of hundreds of thousands of acres of public land in central California, including several existing and potential Wild & Scenic Rivers. Evans was appointed to fill one of two “environmental” seats on the Council for a three-year term. Existing and potential Wild & Scenic Rivers under the purview of the Council include Cache Creek, South Yuba, North Fork American, lower Merced, San Joaquin River Gorge, North and East Forks Kaweah, and the lower Kern River. The Advisory Council serves as a bridge between the local public and the BLM to enhance the management of public lands for the health, diversity, and production of natural resources, the benefit of local communities, and the enjoyment and use of public lands by present and future generations.


[object Object]The San Joaquin River Alert
Audubon: Special to the River Advocate

The San Joaquin River is California’s second largest river, and is an incredible natural resource that deserves our support. Not only does it support California’s agricultural economy, but it also provides incredible opportunities for birds and other wildlife to thrive.

Congress in 2009 passed the San Joaquin River Restoration Program to ensure that this great river will prosper well into the future. Audubon California and our partners in the I’m for the River Campaign support the San Joaquin River Restoration Project because it will provide water for farms and a healthy river for our communities to enjoy, as well as a place for wildlife to thrive.

To keep the momentum going, we need our elected leaders to know that we support the restoration. We need you to tell them that you’re for the River.

TAKE ACTION:  Send them an email right now.


 

 

Yuba

River in the Spotlight: The North Fork of  the Yuba River

The North Yuba River flows for forty-five miles through the northern Sierra Nevada, from its headwaters at Yuba Pass to New Bullards Bar Reservoir.

The river is paralleled by scenic and historic Highway 49, providing easy access to several campgrounds, recreational sites, and popular foot trails. The highway offers many scenic vistas, including breathtaking views of the river's numerous rapids and cascades, the canyon's heavily forested slopes, and the impressive granite spires of the nearby Sierra Buttes. For the history buff, Hwy 49 also provides access to many historic Gold Rush mining towns and sites.

The North Yuba is a formidable class IV-V whitewater river, offering a challenging experience for expert kayakers and rafters during the spring run-off. For the rest of the year, the river is probably known for its diverse fishery. Anglers come from all over California to fish for trophy trout and other game fish in the North Yuba.

VISIT FOR's North Fork Yuba River Page

 

Autumn Leaves

River Saving Tip: Use those falling leaves!
By Johnnie Carlson

It's fall and if you have broadleaf trees - you have falling leaves.  One way to save yourself some work - and help rivers is to use those fall leaves to mulch your garden and flower beds over the winter.  Not only will you help protect your plants from frost, you will cut down on weeds that come up in the early spring as well as add nutrients to your soil as the leaves decompose over the winter. At the end of winter just rake out any undecompossed leaves for composting or turn them into the ground with a small spade or hoe and let the worms finish turning them into great garden soil.

Over the winter those leaves also act like a sponge, they trap the rain and help recharge groundwater by keeping the water from running off into the gutter. In urban areas limiting storm water runoff can have a postive impact on the water quality of of your local river as well!

 

 

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Park your old car on the River Bank - FOR's Bank that is!

Friends of the River now accepts donations of cars, boats, trucks, jet skis and more! In a cooperative effort between Donation Line and FOR your vehicle can be donated to help save our rivers! You must have a clean title. Free Towing & No Hassles. Pick up ASAP.

Call 1-877-227-7487 extension 2811

 

 

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Dredge MiningIN-DEPTH: FOR's Suction Dredge Mining Case
By Steve Evans

FOR seeks to protect all of California's rivers not just from dams and diversions, but for the impacts of human recreation as well. Below is a timeline and case outline of our suit to protect rivers from the impacts of in-river mining for gold.

May 2005 - CEQA (2005) Action

In May of 2005, the Karuk Tribe filed a CEQA case in Alameda County against the Department of Fish and Game.  The case was limited geographically to the Klamath, Scott and Salmon River watersheds.  During litigation, the Department filed declarations with the Court from its Chief Biologist, Neil Manji, and senior policy administrator, Banky Curtis.  The declarations stated that the suction dredge mining program violated CEQA and Fish and Game Code §5653 and that suction dredge mining under the 1994 regulations caused deleterious impacts to fish, particularly the endangered Coho salmon.  Two mining organizations (Public Lands for the People and New 49’ers) intervened in the case.  All parties stipulated to and Court entered an Order and Consent Judgment on December 20, 2006, which required the Department to complete the CEQA review and rulemaking in 18 months (June 20, 2008).  The Court retained jurisdiction to monitor the Department’s progress.

            June 20, 2008 came and went and Department had not begun either the CEQA review or rulemaking.  The Department refused to commence either action until it received a $1 million appropriation from the Legislature.

February 2009 – Hillman (Taxpayer) Action

            The Karuk Tribe joined with conservationists, river protectionist and fishermen across California.  The Coalition filed a statewide action in Alameda to stop the Department from continuing to issue suction dredging permits until the Department completed the CEQA review and rulemaking and the new regulations were in effect.  The case was brought under the taxpayer standing provision and claimed that because the Department’s program violated the Fish and Game Code, CEQA and the 2006 Order and Consent Judgment, the Department was spending taxpayer funds on an illegal program.  The same mining organizations intervened in this action.

The Coalition received a preliminary injunction in July of 2009 which stopped any further issuance of permits.  However, after the Court issued the Order, the Department contended that as long as no taxpayer funds were used to pay employee salaries, then they were within the law.  So, they jiggered their books and continued issuing permits.  The Coalition dragged the Department back into court.  The Judge told the Department that he would not issue an Order that day, but if the Department did not stop issuing permits immediately they’d be pulled back into court on contempt charges. The Department stopped issuing permits the following day.  Weeks later, Public Lands for the People filed their appeal of the Preliminary Injunction Order.  However, the Order remained in effect.

Shortly thereafter, August of 2009, the Legislature adopted AB120, codified at Fish and Game §5653.1, which created a statewide moratorium on all suction dredge mining (including dredging by current-season permit holders).

The Hillman action, the Preliminary Injunction, and the adoption of F&G §5653.1 were all in response to the Department’s contention that although it acknowledged that it’s program violated Fish and Game Code §5653 and CEQA and that issuing permits harmed endangered fish, these same laws required the Department to continue issuing permits to miners.  The Department’s interpretation of its responsibilities is neither supported by the law nor protective of fish.  It does, however, favor the interests of the miners.

September 2010 – Public Lands for the People’s Action

            In response to AB120, the Miners filed a case in San Bernardino County against the Department.  The complaint was originally filed in Federal Court (Sacramento), but was dismissed by the Court for lack of standing.  The Court ruled that because of the effect of the Alameda County’s Preliminary Injunction, the federal Court could not grant the miners any relief (even if they found F&G §5653.1 to be unconstitutional, suction dredge mining was still prohibited by the Preliminary Injunction).  So, PLP re-filed the action in state Court.

            The complaint raises various claims, including preemption under the 1872 Mining laws, a Takings Claim under the Constitution, and a litany of statutory and regulatory violations. 

In January of 2011, the Department filed a demurrer, which challenges the complaint as failing to make a proper claim.  In October of 2011, the miners filed a preliminary injunction, seeking to have F&G §5653.1 to be found unconstitutional and have the moratorium lifted.  Neither motion has been heard by the Court or ruled on.

February 2011 – Department Issues Draft SEIR and Draft Regulations

            In its Draft SEIR, the Department identified certain significant environmental impacts that it contends are unavoidable for legal reasons.  In other words, the Department contends that it does not have the legal authority to mitigate the impacts.  These include: Mercury resuspension and discharge (direct and cumulative impacts); Trace Metal resuspension and discharge (direct impacts); Endangered Birds (direct and cumulative impacts); Cultural Resources; Temporary Noise; Cumulative impacts on water quality (turbidity and sediment discharges into impaired waters).

            The Department’s position is dependent on two legal theories – neither of which are supported by law.  First, the Department claims that Fish and Game Code §5653 restricts the Department to mitigate only deleterious impacts to fish.  Any environmental harm outside this very narrow category is, by the Department’s opinion, outside of its scope under §5653.  Second, the Department contends that no other Fish and Game statute provides substantive authority to mitigate impacts.  This theory is directly contradicted by well-established case law under CEQA, which expressly requires an agency to draw from inferred authority to mitigate impacts.

            The Department can mitigate the list of identified impacts through statutes such as Fish and Game §1802 (which mandates the Department to protect fish, wildlife and their habitats); §711.7 (which identifies the Department as trustee of fish and wildlife); §5650 (which prohibits the discharge of material into waters that will cause deleterious impacts on fish, wildlife or their habitat); or §5800 (which prohibits mining on any water within the Trinity or Klamath River Fish and Game District during certain periods of the year).

            In response to the Department’s refusal to mitigate the identified impacts above, the Legislature acted to amend Fish and Game §5653.1, which continued the moratorium on suction dredge mining until the Department completed the CEQA review, adopted new regulations and mitigated all identified impacts.  It also required the Department to implement a fee structure which would make the program self-funded.  A sunset provision was placed on the moratorium, to end in 2016.

December 2011 – Appellate Court Rules on Preliminary Injunction

            In December of 2011, the Appellate Court heard PLP’s challenge to the Alameda County Preliminary Injunction.  The Court dissolved the Preliminary Injunction on grounds that the legislative moratorium provided the same relief as the injunction.  In order to uphold a preliminary injunction, the Appellate Court would need to find, among other things, that the preliminary injunction was necessary to prevent an immediate and irreparable harm.  Because of the effect of the moratorium, the risk of harm no longer existed.  The Court expressly stated that its ruling was not commentary on the merits of the case, but merely acknowledging a shift in legal landscape.  However, as the Appellate Court noted, it made no difference to the practice of suction dredge mining – as it was still prohibited by F&G §5653.1.

March 2012 – Department Releases Final SEIR and Final Regulations

            Of note – the Department took the position that, despite the Legislature’s clear directive to mitigate all identified impacts, the Department instead would mitigate none, but simply wait until 2016 when the moratorium would lift.

            In response to the Department’s recalcitrance, the Legislature once again amended Fish and Game §5653.1, this time removing the 2016 sunset provision.  At this time, before the moratorium on suction dredge mining will be lifted, the Department must: complete the CEQA review, adopt new regulations, the regulations must be in effect, the Department must adopt a fee structure to make the program self-funded and it must mitigate all identified impacts.

April 2012 – Coalition, PLP and New 49’ers Each File CEQA Actions

            The Coalition was the first to file an action that challenges the legality of the regulations (the regulations fail to comply with the authorizing statute because they don’t mitigate impacts, as required by Fish and Game §5653.1) and that challenges the SEIR.  The initial challenges to the SEIR will be the Department’s failure to mitigate the identified impacts – in violation of Fish and Game §§5653 and 5653.1 and CEQA.  (See discussion under “February 2011 – Department Issues Draft SEIR”.)

            Soon thereafter, Public Lands for the People filed a CEQA action in San Bernardino.  The action also raised preemption of the 1872 Mining Laws, Takings Claims, and various statutory and regulatory violations.

            The New 49’ers filed a CEQA challenge in Siskiyou County, raising preemption, Takings, and bringing a class action on behalf of all federal mining claim holders.

October 2012 – Coordination of All 6 Actions

            All 6 actions have now been coordinated by the Judicial Council and will be tried in San Bernardino County.  Initially, Judge Alvarez (who presided over PLP’s 2010 action) was assigned to be the trial judge for the coordinated actions.  The Coalition filed a peremptory challenge against Judge Alvarez and he will be removed from the cases.

LEGAL ARGUMENTS

  • All the ligation that is currently going on started because the Department refused to update its outdated 1994 regulations, even though several fish species had subsequently added to the endangered species list – including Coho salmon, Chinook salmon and Steelhead.
  • The second case filed by the Coalition (Hillman, 2009) was filed because:
    • The Department acknowledged that its program violated the law,
    • The Department acknowledged that issuing permits caused deleterious impacts to endangered fish,
    • The Department agreed to - and was ordered by a Court to - fix its program by June of 2008, by conducting a CEQA review and adopt new regulations,
    • The Department refused to comply with the Court order and continued to issue permits to recreational miners - at the expense of endangered fish,
    • The Department’s justification was a tortured interpretation of Fish and Game §5653, in which the Department claims that once it adopts regulations, the law requires the Department to continue to issue permits to miners, even when the Department knows that those permits will hurt endangered species.
    • Even now, the Department maintains this interpretation, although a Court ruled it to be false in 2009 (Order Granting Preliminary Injunction, 2009).
    • The Department stated in the 2012 Final SEIR that the ‘significant and unavoidable impacts’ are “unacceptable”, but that the Department can do nothing about them because of legal constraints.  The former claim is true, the latter is unfounded.
  • The Department currently takes the position that Fish and Game §5653 and §5653.1 are inconsistent – meaning, the moratorium will  likely never be lifted because the Department cannot, under any set of circumstances, comply with the requirement that it must mitigate all identified impacts.  This is because the Department takes the position that F&G §5653 only allows it to mitigate impacts that pertain to deleterious impacts to fish (and nothing outside of that narrow category) and because, the Department contends, there is no other substantive authority that allows the Department to mitigate impacts. 
  • The former claim is contradicted by a plain reading of the statute – the “deleterious to fish” clause modifies the Department’s issuance of individual permits, it does not modify the Department’s authority to adopt regulations to implement its program, as the Department claims.
  • The latter claim is expressly contradicted by CEQA case law, which requires an agency to draw from all statutory authority available to mitigate impacts.  The Department can draw from Fish and Game §§1802, 711.7, 5650 and 5800 to mitigate the impacts identified in the SEIR.
  • The Legislature has acted three times in three years – an unprecedented directive to the Department to stop operating its suction dredge mining program in a manner that harms the environment.  The Department is fighting this directive – for reasons that defy both law and logic.
  • NFA Suction Dredger
 

 

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