Jun 8 2010
Jun 10 2010
Nobody can establish the truth.
CDFG is absolutely clueless. That being said they are the authority who said "quit booming or I'll cite you".
The New 49ers blew it in the beginning by creating the new term "booming". Power sluicing should have been the correct term and everybody would now be happy.
Jun 11 2010
I would have to defer to Jim and Dave on this one, but my belief is booming is a technique to wash gravel to a suction tip on a modified highbanker.
Power sluicing is using a modified highbanker with a suction tip.
Both techniques are done out of stream, and therefore CDF&G has exceeded their authority by imposing California Fish & Game code 5653(d), which is a regulation stating that it is illegal to possess a "dredge" within 100 yds of a stream listed as closed by CCR title 14 sec 228.5 . There is no authority given to CDF&G to impose any part of the regulations intended to solely regulate "in-stream" suction dredging upon suction mining techniques outside of the current flowing water in a stream or river.
The New 49ers have not blown anything. This is just a simple matter of a government employee making an enforcement decision that exceeds the legal authority that CDF&G has. The New 49ers have had absolutely no influence one way or another on how CDF&G has chosen to implement enforcement of in-stream suction dredging regulations on out of stream mining techniques.
Fish and game code 5653 and the regulations created from it state without question that those regulations are only to apply to in-stream suction dredging.
The legal intent of the 100 yd rule for a dredge, meant a completely assembled dredge, so if a CDF&G officer caught you out of season, in a closed stream, with a dredge in the water or close to the water, but had not actually caught you operating a suction nozzle, he could still cite you. That code was never intended to mean "any and all suction mining equipment for use in-stream or out of stream", or it would have been worded that way.
Fortunately, the solution to this problem should be as simple as CDF&G admitting their error. That would be the proper thing for them to do based on legal facts, justice, integrity, and the oath taken to uphold the law.
Unfortunately, the legal facts are being avoided and ignored by CDF&G.
Jun 11 2010
Stay tuned, we are communicating with CDFG about this very subject, they agree that the subject is confusing and needs to be addressed. But the wheels move slowly, so hang in there for any answers any time soon.
I'll have to leave the mechanics of how our booming is done to Dave, I have never actually been involved in one of the projects that used the method.
Jun 11 2010
thanks for giving a chuckle today
Jun 11 2010
High-bank mining with a suction nozzle usually involves filling a hole up on a gravel bar with water and then using a suction nozzle to excavate gravel from the hole, usually with tailings water from the recovery system being directed back into the hole. This method is normally used when you are working pay-dirt which is located in deeper material, like several feet.
Booming is not quite the same as this. In booming, the water from the recovery system is allowed to flow over the area where you want to excavate gravel from the surface. There is no hole dug. You use hand tools to free up rocks, and the water flow over the surface allows gravel to be washed directly to a suction nozzle which remains in one place. Moving water does most of the work. This method is more effective when you are processing pay-dirt which is closer to the surface.
It is not what we call the process that DFG is concerned about. Both of these high-banking methods use a suction nozzle to direct gravel into a recovery system. DFG has decided that a suction nozzle is "dredging equipment" which cannot be within 100 yards of a waterway that is closed to dredging.
We do not agree with DFG's interpretation. Like Jim says, we are talking with DFG on this subject.
But my own opinion is that someone is probably going to need to get cited, and a judge will have to decide once and for all. To my knowledge, nobody has been cited, and it has only been on the Scott River that people have been warned.
The citation would be for possession of "dredging equipment" within 100 yards of a waterway.
Since "dredging" is formally defined by DFG as an activity which only takes place within the active waterway, and "booming" is a surface (very small scale) erosive procedure which is impossible to do within an active waterway, a process which has been taking place long, long before modern suction dredging was developed, I would say we have a reasonable chance of winning this one.
Our attorneys are prepared. We will all need to help pay for it. We need to pull together on this.
The original question on this thread was trying to ask if using a suction nozzle up away from the active waterway is legal. I am not a licensed attorney, so I can only give you my own opinion. In fact, you would likely get a different opinion from different licensed attorneys. This is why I believe we will need to take it to a judge.
I believe use of the suction nozzle up out of a waterway is legal since that is not defined as "dredging" by DFG. The controversy is over the possession (not the use) of a suction nozzle within 100 yards of a waterway. Is it "dredging equipment" if it was never designed or intended to be used for "dredging?"
We all need to make our own personal decisions concerning legal matters.
Here is some good advice: If you are going to do this activity, make sure you are not too close to the active waterway, make sure your excavation remains small, make sure you are not allowing dirty water to re-enter the waterway, make sure your work area is clean and orderly, and make sure you are not doing anything else that you can be cited for.
If anyone does get cited, I would like to know about it ASAP.
Jun 14 2010
Jun 15 2010
Fish & Game Code 5653a
"The use of any vacuum or suction dredge equipment by any person in any
river, stream, or lake
of this state is prohibited, except as authorized under a permit issued to that person by the department in compliance with the regulations adopted pursuant to Section 5653.9. Before any person uses any vacuum or suction dredge equipment in any river, stream, or lake of this state, that person shall submit an application for a permit for a vacuum or suction dredge to the department, specifying the type and size of equipment to be used and other information as the department may require."
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.
Fish & Game Code 5653.5
"For purposes of Section 5653, “river, stream, or lake” means the body of water at the current water level at the time of the dredging."