The Honorable Arnold Schwarzenegger                                               
Office of the Governor
State Capitol Building
Sacramento, CA 95814                       

September 28, 2007

Dear Governor Schwarzenegger:

I urge you to veto Bill AB1032 (Wolk) when it comes before you.

I am a retired U.S. Environmental Protection Agency Research Biologist.  I have spent more than 30 years working to study and protect our environment.  My family and I have also been small-scale gold dredgers for approximately 20+ years and I currently have mining interests in California.  I believe that this puts me in a unique position to discuss the issues relevant to Bill AB1032.

My background as both an environmentalist and a miner has led me to be involved, as an expert witness, in two important legal cases: Karuk vs U.S. Forest Service and Karuk vs California Department and Fish and Game.  The courts rejected the claims of the Karuk in both cases.  Both of these cases were focused on the removal of miners from the rivers and streams of California.  In both cases the Karuk made many claims against the miners (the real targets of the litigation). When asked to provide scientific proof of their accusations they were unable to do so.  Even the California Department of Fish and Game tried to sell out the miner’s rights.  When CA DF&G were asked for scientific data to support their position against the miners during discovery, the miner’s lawyers were thwarted and denied access to data.  This all leads to one conclusion…THERE IS NO DATA TO SUPPORT THE ACTIONS AGAINST MINERS THAT WERE UNDERTAKEN IN THESE COURT CASES AND THOSE FOUND IN BILL AB1032.

Involvement in these cases has allowed me access to the opposition’s scientific documentation against small-scale suction gold dredgers.  In short THEY HAD NONE.

Then why would the Senate and Legislature pass AB1032.  I believe they did so because a large weight was put on the testimony of Dr. Peter Moyle.  Dr. Moyle has an extensive record of publications.  It is a record that any scientist should be proud to call their own.  However, it perplexes me that a man of his scientific credentials would take such non-scientific positions that he has.

In accepting Bill AB1032 the elected officials have accepted two positions: (1) Miners should be denied their right to mine on the assumption that they might be causing harm (where no harm has been established through scientific investigation); and, (2) Individual miners, rather than enforcement agencies, must establish that they are not causing harm to the environment.  This is certainly backwards.

I raise these issues in relation to Dr. Moyle because of what I have found in his testimony in the Karuk vs California Department and Fish and Game suit.  I have attached the relevant pages, from his court declaration, containing his statements that I would like to discuss.  I have added the pages as an attachment so his statements can be read in full and not taken out of context.

On page 6 of his declaration Dr Moyle states, “…it SHOULD BE ASSUMED that dredging is harming declining species unless it can be proven otherwise.”  With this one statement he clearly states there is no published scientific data to support denying miners the right to mine. 

Dr. Moyle goes on to state, “Suction dredging should be banned…UNLESS IT CAN BE PROVEN USING PEER-REVIEWED SCIENTIFIC STUDIES that the dredging has no short term or cumulative effects.”  So now, in Dr. Moyle’s Summary of Expert Opinions, he has twice stated there is no published scientific data to support his position.

By-the-way, a report on the water quality cumulative effects of placer mining on the Chugach National Forest, Alaska found that, “The results from water quality sampling do not indicate any strong cumulative effects from multiple placer mining operations within the sampled drainages.” “Several suction dredges probably operated simultaneously on the same drainage, but did not affect water quality as evidenced by above and below water sample results. In the recreational mining area of Resurrection Creek, five and six dredges would be operating and not produce any water quality changes (Huber and Blanchet, 1992). 

A second study found that, “Cumulative suction dredge mining was found to be non-significant for each of the three response variables tested in a general linear model (Response variables were pool densities of salmonids over one-year-old, pool densities of young-of-the-year salmonids, and a stream habitat measure of width-to-depth ratio)” (Bayley, P.B., 2004).

On page 8 of Dr. Moyle’s declaration he states, “It should be ASSUMED there is harm, unless it can be proven otherwise.  …we simply do not know the effects of dredging on many species…”  This is the place where he once again clearly states there is no scientific evidence to support his position.  However, here he steps up and states that miner’s rights should be denied because of some assumed harm.

Dr. Moyle’s last quote, also from page 8, states, “Even for salmonids, information on the effects of dredging…is largely ANCEDOTAL.”  This is a very weak position for a scientist to accept.  Ancedotal information is based on casual observations or indications rather than rigorous scientific analysis.  The term is often used in contrast to scientific evidence.  The problem with arguing based on anecdotal evidence is that anecdotal evidence is not necessarily typical; only statistical evidence can determine how typical something is. Misuse of anecdotal evidence is a logical fallacy.  A logical fallacy or a formal fallacy is a pattern of reasoning which is always or at least most commonly wrong. This is due to a flaw in the structure of the argument which renders the argument invalid. A formal fallacy is contrasted with an informal fallacy, which has a valid logical form, but is false due to one or more of its premises being false.

So, we are left with a highly respected scientist choosing to take a non-scientific position to support individuals and organizations that do not respect the right of the individual citizen.  This is most unfortunate because this scientist appears to have become an advocate for a certain agenda which, he clearly states in his own words, has no supporting scientific evidence.   Dr. Moyle appears to forget that science moves forward and makes progress by skepticism rather than by the preservation of some status quo or some consensus position.

I will make only a few scientifically supported points and leave answers to any further questions to be found in the attached documents.

The Effects of Small-Scale Suction Dredging on Fish, Fish Eggs, and Fish Fry

“Impacts to stream fish were severe for early life stages, eggs and sac fry, while free swimming fish were not directly affected” (North, P.A., 1993).  It is well known that early life stages of fishes are sensitive to suction dredging.  The solution to this has been denial of permission to dredge in California waters for about 9-month out of each year.  The opposition often sites the harm suction dredge mining does to early life stages of fish while knowing full well that miners do not work during these seasons.  This is deliberate deception using factual scientific information. 

“The effects of suction dredging would appear to be less than significant and not deleterious to fish” (CDFG, 1997).  Nothing has been published in the scientific literature that should change the California Department of Fish and Game’s position on small scale suction dredge mining.

Geographical Scale of Small-Scale Suction Dredging

The California Department of Fish and Game (1997) described typical dredging activities as follows’ “An individual suction dredge operation affects a relatively small portion of a stream or river. A recreational suction dredger (representing 90-percent of all dredgers) may spend a total of four to eight hours per day in the water dredging an area of 1 to 10 square meters. The average number of hours is 5.6 hours per day. The remaining time is spent working on equipment and processing dredged material. The area or length of river or streambed worked by a single suction dredger, as compared to total river length, is relatively small compared to the total available area.” 

An Oregon Siskiyou National Forest Dredge Study, chapter 4, Environmental Consequences, provides some perspective to small-scale mining. “The average claim size is 20 acres. The total acreage of all analyzed claims related to the total acres of watershed is about 0.2 percent. The average stream width reflected in the analysis is about 20 feet or less and the average mining claim is 1320 feet in length. The percentage of land area within riparian zones on the Siskiyou National Forest occupied by mining claims is estimated to be only 0.1 percent.” The report goes on to say, “Over the past 10 years, approximately 200 suction dredge operators per season operate on the Siskiyou National Forest” (SNF, 2001).

 A report from the U.S. Forest Service, Siskiyou National Forest (Cooley, 1995) answered the frequently asked question, “How much material is moved by annual mining suction dredge activities and how much does this figure compare with the natural movement of such materials by surface erosion and mass movement?” The answer was that suction dredges moved a total of 2,413 cubic yards for the season. Cooley (1995) used the most conservative values and estimated that the Siskiyou National Forest would move 331,000 cubic yards of material each year from natural causes. Compared to the 2413 (in-stream) cubic yards re-located by suction mining operations the movement rate by suction dredge mining would equal about 0.7% of natural rates.

The opposition wants you to believe that small-scale suction dredge miners impact spawning fish and disturbs fish redds and early life stages.  This is untrue and the published science supports the miners.  Mining is not performed in the rivers and streams of California (or any other State that I know of) during seasons when sensitive life-stages of fish are present.

The opposition wants you to believe that small-scale suction dredge miners impact large areas of the rivers and streams they work in.  Investigations have shown that in-water mining impacts are very small relative to the vast area of the watersheds where mining is occurring.

Court Decision, Superior Court of Alameda, CA, Karuk vs CA DF&G

The CDFG is clearly attempting to circumvent the rights of the State’s citizens by ignoring due process laws regarding the right of the public to notice and hearing requirements of the California Environmental Quality Act and the California Administrative Procedures Act.  From what I understand they are supporting AB1032

The Honorable Bonnie Sabraw, Judge of the Superior Court of Alameda, CA stated the following position that: “The Honorable Bonnie Sabraw, Judge of the Superior Court, County of Alameda, CA stated the following position: that, The initial Stipulated Judgment would enjoin suction dredge mining altogether in certain areas and during certain periods in others.  The closures of the rivers would be generally applicable to all suction dredging while in effect.  The injunction would essentially act as promulgation of new regulations on suction dredging, without such regulations being subjected, as required by law, to the public notice and hearing requirements of the California Environmental Quality Act and the California Administrative Procedures Act.  She further stated that, “The intervenor Miners had sought discovery of the expert witnesses of Plaintiffs and of the facts on which the experts based their opinion.  Plaintiffs and Department sought Protective Orders enjoining the discovery……”.  The entire transcript can be read at: http://www.goldgold.com/legal/2nd001.pdf. 

I thank you for the opportunity to share this information with you.  I hope you find it useful and that my comments help in convincing you to veto this terrible bill.

Sincerely,

Joseph C. Greene
Research Biologist/Ecotoxicologist
Retired: U.S. Environmental Protection Agency
33180 Dorset Lane
Philomath, OR 97370-9555