BILL ANALYSIS
SB 889
Page 1
Date of Hearing: June 15, 2010
ASSEMBLY COMMITTEE ON WATER, PARKS AND WILDLIFE
Jared William Huffman, Chair
SB 889 (Aanestad) - As Introduced: January 21, 2010
SENATE VOTE : 28-1
SUBJECT : Suction Dredge Permits
SUMMARY : Requires the Department of Fish and Game (DFG) to
refund the amount of permit fees paid by persons who purchased a
suction dredge permit in 2009 prior to the placement of the
current moratorium on suction dredge mining. Specifically, this
bill :
1)Requires DFG, upon request of the permit holder, to refund the
amount of the permit fee paid by a person who purchased a
suction dredge permit in 2009 that is subject to the existing
moratorium on operation of instream suction dredge equipment
imposed by legislation enacted last year.
2)Provides that this bill shall take effect immediately as an
urgency statute. Provides that the facts necessitating the
urgency are to allow DFG, as soon as possible, to refund the
fees paid in 2009 by instream miners for vacuum or suction
dredge permits rendered unusable by the moratorium.
EXISTING LAW :
1)Prohibits the use of vacuum or suction dredge equipment by any
person in any water body in California except as authorized by
a permit issued by DFG. Sets the base fee for a resident
permit at $25 and a nonresident permit at $100. With
adjustments for inflation, the 2009 base fees were $47 for
residents and $185.25 for nonresidents.
2)Prohibits, effective August 6, 2009, the use of any vacuum or
suction dredge mining equipment in any water body in the state
until the director of DFG certifies to the Secretary of State
that DFG has completed a court ordered environmental review of
its existing suction dredge mining regulations, DFG has
transmitted for filing with the Secretary of State new
regulations adopted pursuant to the Administrative Procedures
Act, and the new regulations are operative.
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FISCAL EFFECT : According to the Senate Appropriations
Committee, lost revenue to DFG of as much as $270,000, to the
Fish and Game Preservation Fund (FGPF), potentially offset by
avoided refund costs due to litigation.
COMMENTS : Vacuum and suction dredge mining is a process by
which power equipment is used to vacuum up sediment from the
streambeds of rivers, creeks or other water bodies to search for
gold. DFG issues permits for use of motorized suction dredge
equipment for recreational gold mining in California streams.
Existing regulations governing the use of suction dredges for
instream gold mining were last updated in 1994. In 2005 the
Karuk Indian Tribe sued DFG over the adequacy of the regulations
in protecting fish and wildlife. DFG filed declarations with
the court stating that in the opinion of DFG and other fishery
biologists, suction dredge mining was resulting in deleterious
effects on Coho salmon, a species listed under the Endangered
Species Act. A court order entered in December 2006 as part of
a settlement agreement ordered DFG to complete an environmental
review of its existing permitting program and to promulgate new
regulations, as necessary, to protect Coho salmon and other
listed species by July of 2008. After this deadline was not
met, on July 9, 2009 a court issued a preliminary injunction
restricting DFG from issuing suction dredge mining permits until
the litigation was resolved or the court issued a new order.
On August 6, 2009, suction dredge mining was suspended in any
California river, stream or lake when SB 670 (Wiggins, Chapter
62, Statutes of 2009) became law. Limited exceptions to the
moratorium apply for dredging operations for regular maintenance
of energy or water supply management infrastructure, flood
control and navigation. Under SB 670, recreational suction
dredge mining remains prohibited until DFG completes an
environmental impact report and updates its regulations, and the
regulations take effect. DFG estimates the review will be
completed by late summer or fall of 2011.
According to the Senate policy committee analysis, DFG issued
3,643 suction dredge mining permits in 2009. Although no
suction dredge mining was allowed after August 6, current law
does not allow DFG to provide refunds to permit holders. Suction
dredge permit fees are deposited in the FGPF where they are used
to support DFG functions. DFG does not specifically track
employee time spent on suction dredge mining, but estimates its
costs for enforcement and permit processing at approximately
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$50,000 and $6,000, respectively, of the $175,000 collected in
permit fees in 2008.
The author has introduced this bill to provide relief for miners
who bought their permits on the assumption they would be valid
throughout the year. The author and supporters assert it is
only fair to allow those miners to be reimbursed, upon request,
for the cost of their prohibited permit.
Opponents of this bill are supportive of providing miners
pro-rated refunds of their permit fees but do not believe that
new legislation is needed for this purpose. Instead, the
Governor could direct DFG to provided refunds in the same manner
as he did in 2008 and 2009 when the commercial salmon fishing
seasons were cancelled. Opponents indicate they would support
this approach.
DFG indicates it does not have existing authority to refund
fees. However, in 2008 and 2009 refunds for permit fees were
provided to commercial salmon fishing licensees pursuant to
executive orders issued by the Governor, who specifically
directed DFG to refund the commercial salmon fishing license
fees paid for those seasons prior to the closure of the salmon
fishing season in his April 10, 2008 and April 21, 2009
proclamations declaring states of emergency. It is not clear
that the Governor had or has the emergency authority to order
the commercial salmon fishing license fee refunds, but his order
was not challenged.
In the Senate there was some debate as to whether the refunds
should be pro-rated, since the season was not closed for the
entire year. The Senate Appropriations Committee analysis noted
that DFG will incur costs to refund the permit fees in their
entirety, but that the administrative costs involved in
calculating pro-rated refunds may exceed the costs saved. They
also note that without payment of the refunds, DFG could incur
litigation costs if permit holders bring legal actions for
refund of the fees. At least one small claims court case has
been filed to date and resulted in a court order for DFG to
refund the fees.
The committee may wish to consider whether authorizing a
standard pro-rated amount, such as 2/3rds of the amount paid, to
be refunded makes more sense, in recognition of the fact that
permit holders were authorized to make use of the permits for a
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portion of the year. This would also minimize the revenue loss
to DFG, which incurred administrative and enforcement costs.
REGISTERED SUPPORT / OPPOSITION :
Support
The New 49'ers
Siskiyou County Board of Supervisors
Opposition
Friends of the River
Klamath Tribe of California
Klamath Riverkeeper
Pacific Coast Federation of Fishermen's Associations
Analysis Prepared by : Diane Colborn / W., P. & W. / (916)
319-2096