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Classroom #2 - Homework Assignment #2
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Woof!



Joined: 09 Jan 2012
Posts: 90
Location: Gold Trail

PostPosted: Tue Jan 24, 2012 4:56 pm    Post subject:  Reply with quote

bejay,

All of these case cites are a paraphrase of the meanings in the Mineral Grant. The court has already defined and re-defined what is meant by the words in those Acts.

That being said these case cites are worthless as anything but encouragement for those who might have interpreted the Acts wording differently. Every case deals with a specific matter, these rulings are not universal or even applicable to a similar case. The Mineral Estate Grant is an individual Grant directed at the discoverer of a valuable mineral deposit. Unlike water rights or the right of way for the public as a general Grant.

Previous Dicta by the courts does not win cases - facts do. If you have been injured no amount of Dicta can make you whole - you must have a judgement that is specific to your injury.

As far as the Mining Acts being old, repealed, modified or expired you need only to read United States Code Title 30. Every phrase from the Acts is still intact there and by definition is current law.

Woof!
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beebarjay



Joined: 30 Dec 2011
Posts: 230
Location: Central Oregon Coast & Az

PostPosted: Tue Jan 24, 2012 5:36 pm    Post subject: Reply with quote

OK......got it.   Will study more.   Guess I watched to much Perry Mason.
UNITED STATES CODE TITLE 30 has many subsections (I think that is what the ss means) that are almost word for word from the Acts......Grant.  United States Codes...is the codification of all the general and permanent laws of the United States.   I'll go back and compare the language verbatem and get a more definitative conclusion.
 

Thanks,

bejay
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Hefty



Joined: 30 Dec 2011
Posts: 132
Location: sacramento ca

PostPosted: Tue Jan 24, 2012 8:51 pm    Post subject: Water Rights Reply with quote

California Water Rights and the Public Trust Doctrine

General:
•         The State of California owns all of the water in the state
(California Constitution, California Water Code (CWC)).
•         In California, rights are usufructuary and pertain to the use of the water, not actual ownership of it (California Constitution, CWC).
•         The State Water Resources Control Board is the state agency in charge of administering and allocating water rights.  

Appropriative Rights (Doctrine of Prior Appropriation)
•         Entitlement is based on actual use of the water and developed from the miners in the 1850's using water on the public domain.
•         Appropriative rights may be sold or transferred.
•         Rights of appropriators who divert first are senior to subsequent (junior) appropriators.
•         Must apply to the State Water Resources Control Board for a permit.
•         Approval is based on availability of water, "reasonable and beneficial use" clause (CA Constitution: Article 10, § 2), possession of the water, and priority in appropriation.
•         Title can be lost through nonuse.
•         Codified in CWC §1450.
•         See Irwin v. Phillips (1855)

Riparian Rights
•         Entitlement stems from the ownership of property abutting a natural watercourse.
•         Riparian rights are a facet of English Common Law [1][1] which the U.S. adopted following the revolution.
•         Entitlement established under the riparian doctrine must only be for use on the riparian parcel.
•         Rights are subject to "reasonable and beneficial use" clause.
•         Rights are senior to appropriators and correlative with respect to other riparians.
•         Title cannot be lost through nonuse.
•         See Hudson v. Dailey (1909) [re subdivisions of riparian parcel], Gin S. Chow v. Santa Barbara (1933) [applied "reasonable and beneficial use" to riparians], Harris v. Harrison (1892) [rights are correlative among riparians]

Dual Rights (The California Doctrine)
•         Refers to the blending of Appropriative and Riparian Rights
•         See Lux v. Haggin (1886) [riparian as senior], Herminghaus v. Southern Edison Co. (1926) [riparians as subject to "reasonable and beneficial use"]

Pueblo Rights
•         Under Spanish and Mexican law, some missions attained status as a municipality to use adjacent sources of water.  
•         These rights are paramount to all other rights.
•         This system only affects a few towns in southern California.




[size=18]Federal Reserved Rights
•         When the United States reserved public domain land for national parks and forests, it implicitly reserved water to support these areas.  
•         These rights are senior to all state claims
•         See Winters v. United States (1908), Arizona v. California (1963), United States v. New Mexico (1978)[/size
]
Prescriptive Rights (Doctrine of Mutual Prescription or Equitable Apportionment)
•         Allows for junior rights holders to immunize themselves from senior rights holders.  This is important because in times of water shortage, junior rights holders typically have to give up a larger share of the water.
•         Applies the real property common law theory of adverse possession to water.
•         Generally means that if you are a junior user and have been openly and notoriously using water adverse to a senior rights holder for a few years, then you have priority equal to him.
•         See City of Pasadena v. City of Alhambra (1949) [eliminated priorities among appropriators], City of Los Angeles v. City of San Fernando (1975) [limited these "prescriptive" rights against public agencies]

Groundwater: Overlying Rights and Appropriative Rights
•         Landowners have overlying rights to use groundwater beneath their parcel.
•         These rights are correlative with respect to other overlying users for use on overlying land.
•         Use on overlying land is paramount to use on non-overlying lands.
•         Subject to "reasonable and beneficial use" clause.
•         No permit is required and the state has no program for managing groundwater, with exception of adjudicated basins.  These adjudicated basins use the courts to resolve disputes and appoint a water master to apportion water.  (AB3030 is the only state legislation allowing the formation of groundwater management districts).
•         See Katz v. Walkinshaw (1903) [applied "reasonable and beneficial use" to groundwater], California Water Service Co. v. Edward Sidebotham and Sons, Inc. (1964) [overlying use as paramount]

Public Trust Doctrine (PTD)
•         The PTD holds that certain resources are above private ownership and reside in the Trust of government for the benefit of the People.  It is the duty of government to administer these resources to the highest public interest.
•         Originally, the PTD only applied to the protection of fishing, navigation, and commerce on waterways.
•         Oldest “environmental” law with roots in the Institutes of Justinian Book 2, Div. 1 (535 A.D.)
•         1. By the law of nature these things are common to mankind---the air, running water, the sea, and consequently the shores of the sea. No one, therefore, is forbidden to approach the seashore, provided that he respects habitationes, monuments, and buildings which are not, like the sea, subject only to the law of nations. 2. All rivers and ports are public; hence the right of fishing in a port, or in rivers, is common to all men.
•         Adopted by English Common Law
•         Upon Signing Declaration of Independence the U.S. adopted English Common Law where consistent with the Constitution of the U.S.
•         Found generally in the "Commerce Clause" of the U.S. Constitution Article 1, Sect. 8; and Title 33 US Code
•         Interpreted in Supreme Court Decision Illinois Central Railroad v. State of Illinois of 1886 (146 U.S. 387)
•         Quoted in the case is Chief Justice Taney from Martin v. Waddell, "When the Revolution took place the people of each state became themselves sovereign, and in that character hold the absolute right to all their navigable waters, and the soils under them, for their own common use, subject only to the rights since surrendered by the constitution to the general government."
•         The PTD has since expanded in scope to include recreational and environmental benefits, in addition to commerce and fishing.
•         The PTD has been expanded in applicability to not only navigable waters, but in some cases to all state-owned lands, fish, and wildlife.
•         In California the PTD has taken various forms:
•         California Constitution Article 10, § 2,  "reasonable and beneficial use" and § 4 regarding navigation
•         California Endangered Species Act, California Fish & Game Code, California Water Code
•         The PTD also stands alone as a common law principle
•         Seminal case was National Audubon Society v. Superior Court Alpine County (LA Department of Water and Power, SWRCB, real parties).  Suit was brought to limit diversions of streams tributary to Mono Lake.  Supreme Court overturned decision in favor of Audubon Society, forcing the SWRCB to amend water rights permits to LA Department of Water and Power.  Other cases have cited the Fish & Game Code as grounds to increase flows in streams to protect fish and wildlife (Big Bear Lake and Putah Creek Cases, SWRCB decision WR 95-4).  

Further Reading on Water Resources and the Public Trust Doctrine:
1.        California Environmental Resources Evaluation System.  http://www.ceres.ca.gov/
2.        Department of Water Resources.  The California Water Plan 160-98. http://rubicon.water.ca.gov/b160index.html
3.        Department of Water Resources. http://www.dwr.water.ca.gov/
4.        Hundley, Norris.  The Great Thirst: Californians and Water, 1770's-1990's.  University of California Press: Berkeley, 1992.
5.        Lazarus , Richard J. "Changing Conceptions of Property and Sovereignty in Natural Resources: Questioning the Public Trust Doctrine," 71 Iowa 609, 1986.
6.        Sax , Joseph L. "The Public Trust Doctrine in Natural Resource Law: Effective Judicial Intervention," 68 Mich. L.R. 473 1970.
7.        State Water Resources Control Board. http://www.swrcb.ca.gov/
8.        Water Education Foundation.  Layperson's Guide to Water Rights Law. http://www.water-ed.org/
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GoldPatriot



Joined: 30 Dec 2011
Posts: 219
Location: Waldport, Oregon

PostPosted: Tue Jan 24, 2012 9:27 pm    Post subject: Reply with quote

Hefty;  Good work and I hope that the challenge of learing and researching law is becoming at least to some degree, fun.  Learning the importance of law and the importance of legal cites, puts you in a special place that will pay dividends.

What pleases me to no end, is witessing so many of the members finally seeing the interconnectability of mining laws and how legal cites can give you legal insulation against the heavy hand of government and green wackjobs alike.

While there is a way to go yet, you are no longer "easy pickings" for those that would attempt to assault your rights.... or mine.... or the other members.

Just think of how much a difference we could make, if our membership were to swell to 1,000, 3,000, 5,000, 10,000 members.. all of which could walk away from this forum, armed with their knowledge of mining rights and how to defend themselves.

Good work.. keep it up my friend.
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beebarjay



Joined: 30 Dec 2011
Posts: 230
Location: Central Oregon Coast & Az

PostPosted: Tue Jan 24, 2012 9:36 pm    Post subject: Reply with quote

Well that does say the States acknowledge some authority of the Feds Public Domain. I wonder if they (Calif) ever read the Mining Laws (Acts).  I doubt if they even understand the meaning (power) of the "paramount" Granted rights of miners.  I would find it interesting to see if there has been any challenges against the State of Calif. over the rights of miners to utilize water for mining on Public Domain. Or maybe I should phrase it differently:  The State challenging a miner over his utilization of water once he enters the public domain and falls within the Mineral Estate Grant. From all that has been stated so far within the classroom studies; the obvious is that Calif. has failed to comprehend the Mining Acts and the Mineral Estate Grant.  I think Boxy put it well on the GPAA forum thread......."the States can not take what was once given".
It iinteresting, and should be noted that the State of Calif gives Paramount rights to Pueblos, but makes no mention of the paramount rights to miners on the public domain.

But that is just my observation based on what has been learned so far.
 
bejay
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Last edited by beebarjay on Tue Jan 24, 2012 9:55 pm; edited 3 times in total
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Hefty



Joined: 30 Dec 2011
Posts: 132
Location: sacramento ca

PostPosted: Tue Jan 24, 2012 9:36 pm    Post subject: Reply with quote

Thank you Sir!
And yes this is Fun!


Hefty
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1866



Joined: 02 Jan 2012
Posts: 102
Location: Jefferson Mining District

PostPosted: Tue Jan 24, 2012 11:28 pm    Post subject: Reply with quote

Woof did a good job of bringing forward the water issue.

Ultimately, the authority of the states was placed with aiding in organized and peaceful disposal. ie. They can lay down rules that establish a basis of guideline for orderly disposal and basic guidelines to avoid the possibility of conflicts over water, be it miner vs. miner, miner vs. farmer, etc. The same is true of the mining districts.

In fact, having had the opportunity to review some the original district recorder's books going back into the 1870's, I must say that even I was shocked at what was contained in those records. In addition to claim filings, were also filings for "water claims", assignments of powers of attorney, wills and even cattle brands. They recorded and preserved anything that was of importance to miners.

Yet ultimately, neither the districts, nor the states, have an authority to go back and take from the miners what was granted to them. Not only would this contravene federal law, but it also runs rampant against the United States Constitution which specifically forbids the takings of property without just compensation.

As always, you can see, as Hefty posted, that California has a problem with the Mining Law and rights in general. You see it in the water "laws", you see it in the ban on a certain type of mining and going back in the history, you see it in the Caminetti Act.

Meanwhile, here to the north, in Oregon, the state actually reaffirmed the Act of 1866 in 1899 where they granted ALL the waters in the state to the miners with the exception of Multnomah Creek, without regard to deterioration or diminuation in quantity or quality.

http://www.jeffersonminingdistric...aw/1899-Oregon-Water-Law/1899.pdf

Despite this, by the 1960's, even Oregon began to agress against the miner's right to water and went out and invalidated lawfully filed water rights on claims without any compensation.
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beebarjay



Joined: 30 Dec 2011
Posts: 230
Location: Central Oregon Coast & Az

PostPosted: Wed Jan 25, 2012 4:27 pm    Post subject: Reply with quote

So when the State of Oregon invalidated the lawfully filed water rights of miners on claims without any compenstation, as I understand what Woof has stated earlier, it would have been up to the individual miner who was "harmed" to challenge that taking and restore that which was rightfully his, or receive compenstion for the taking?  I believe this is what Woof is trying to pound into my head.  In order for the miner to do that he would have HAD to of HAD a very good understanding of the mining laws, and the power of the Grant he held.  See Woof....I think I got it as stated earlier.  At least I think I got it right this time.  And I think this is still part of the classroom discussion.

bejay
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Woof!



Joined: 09 Jan 2012
Posts: 90
Location: Gold Trail

PostPosted: Wed Jan 25, 2012 11:01 pm    Post subject: Reply with quote

That is certainly a valid alternative bejay. Going on the offensive has it's merits and can be quite effective when the target is clear.

I think there could also be an argument that a modern miner may be prone to shoot himself in the foot.  Very Happy

The people's right to the waters is ancient and clearly recognized in modern law. The 1866 grant of ditches, flumes, right of ways, easements, dams etc. confirms the miner has a natural right to water. That right to divert and use is a right based on:
1. Need (You can only take what is necessary)
2. Prior use (First to use - First in right)
3. Availability (Once all the water is used by those with a prior right your right is unenforceable)
4. Local Customs and Laws.

It's the last one that trips up the modern miner. We have been lead to believe that "Local Customs and Laws" could declare the first three basics no longer valid. This is obviously false once you consider that the ancient and natural right to water can't belong to a State or Local Government. Only people have a right to water.

If it will make you feel better I can give you a raft of law and court decisions that say exactly what I explained above. Although it can easily be proven that a lawful right to available water for mining still exists today it is just as easy to contract away your right to that water.

Has the State done damage to your lawful right to the water necessary for mining? Or have you traded that right for a license or permit with the "benefit" of regulation? Doesn't it sound like that "license" would be against the law.. perhaps even illegal?

Bouviers wrote:

LICENSE, contracts.
A right given by some competent authority to do an act, which without such authority would be illegal. The instrument or writing which secures this right, is also called a license. Vide Ayl. Parerg, 353; 15 Vin. Ab. 92; Ang. Wat. Co. 61, 85.


So the question really is:
"Did the miner apply for the benefit of a license to do that which he already had a right to do? And if so was the miner damaged by the issuer of the license?"

Or

"Can a man sue himself for damages caused by his own acts? And if so would a valid defense include the argument "I didn't know my rights"?"

OW! My foot!!  Embarassed   Very Happy

And there in a nutshell is the biggest problem facing miners and the reason so many of us misunderstand why the courts rule the way they do. Often the issue being heard by the court is not the issue the miner believes he is raising.

The way to defend yourself against being trapped in to regulation instead of enjoying your Grant is to learn what your rights and responsibilities really are. You are in the right place.

_______________________________

I think you might have misunderstood part of my previous response bejay. When I wrote:
Woof! wrote:
These case cites are worthless as anything but encouragement for those who might have interpreted the Acts wording differently

I certainly DID mean that to include clueless Judges that might need a nudge to remind them that they are not ruling in a vacuum.  Wink

______________________________

I'll leave you tonight with one more definition. Perhaps this will help you understand that the Grant survives even our worst decisions.

Bouviers wrote:

INALIENABLE. This word is applied to those things, the property of which cannot be lawfully transferred from one person to another. Public highways and rivers are of this kind; there are also many rights which are inalienable, as the rights of liberty, or of speech.



Woof!
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1866



Joined: 02 Jan 2012
Posts: 102
Location: Jefferson Mining District

PostPosted: Thu Jan 26, 2012 12:09 pm    Post subject: Reply with quote

You are getting it BeJay. You're right that it is up to to each and every miner to challenge them when they take. This is true regardless of whether it is the water, the road, the right to mine or the mine itself.

So far as Oregon's attacks on the water, I've had the opportunity to review what took place in the 1960's, in large part, because I knew that there had been "water claims" (you don't want to call them "water rights", because we all have water rights, as Woof so well pointed out) attached to my primary "claim". In this instance, we have a Chinese ditch running through the center of the claim that draws from a "point source" (loaded term) on some warranty deed property about a 1/2 mile up the creek. In total, in addition to a 160 acre placer, we also have several lodes inside the boundaries of that placer. The old lode claims had claim to water from this Chinese ditch, so I had questions about the water they had appropriated by entry. Back to the records you go. What I found was interesting, but not shocking.

Ultimately, it proved that in the 1960's, the state had gone in and started taking these appropriations from the miners. Basically, they just noticed them that their "water rights are hereby canceled". No hearings, no explanations, no just compensation, just "we are taking your stuff, because you did not file a protest within 60 days." The patent holder further down the ditch was also effected and as he is of advanced age, I knew that he had been around in those days and in fact, he was listed as one of those effected. I asked him "Why didn't you guys protest?" and he remarked "Fact is, we didn't know we were even under threat until they took it. We had no notice by mail." So I asked "Why didn't all of you protest that you were not of any lawful notice and that the order wasn't lawful and that they had stolen your property?"

Then he said "You mean to tell me that we had could have done that?"

So the fact is, these guys just didn't know their rights. Rights not known are rights not excercised. Rights not excercised are rights that are not protected.

That said, Woof is also right when he said that it's likely that the modern miner may shoot himself in the foot.

With that in mind, I also want to make something very clear here: these rights that you are starting to learn, be it from me, Woof, Gold Patriot, MEG or others, it is the equiviliant of handing a loaded gun to you.

If you don't learn how to use it correctly, let alone when to pull the trigger or where to place your shot, you may very well shoot yourself in the foot.

But if you learn how to use and how and where to employ it, like the gun, you have a tool that will protect you.

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