Prospectors angry with new rules aimed at helping fish

YAKIMA — By definition, to prospect is to search for something desirable. And for this state’s prospectors — the roughly 2,000 men and women for whom a profitable day involves sifting through streambed gravel and silt — that quest is typically for gold or platinum.

On Saturday, though, state prospectors got their hands on something very different than what they had sought.

Two years earlier, they had asked for a new set of guidelines less confusing and restrictive than the 1999 pamphlet governing gold panning and mineral prospecting.

The new rules approved Saturday by the Washington Fish and Wildlife Commission are not remotely what they had in mind.

“My understanding was that the legislative intent was to make the current (rules) pamphlet smaller and easier to use,” said Bruce Beatty of the Washington Miners Council.

“Instead, we got something far more complex, far more restrictive, and not very practical for a prospector on the mineral estate.

“You’ve got (92) pages to look at (in the new rules package),” Vancouver prospector Scott Atkinson said. “Does that make it easier to understand and less restrictive?”

Both Beatty and Atkinson were part of a work group created in January 2007 to work on developing the new rules with the Washington Department of Fish and Wildlife, which oversees prospecting permits. But things didn’t go as the prospectors hoped.

“We came up with regulations that are fair and that cover all the issues and still allow miners to do their activities,” Atkinson said. “But then at one of our last meetings in 2007, Fish and Wildlife biologists introduced work windows — the timing for us to get into the water areas.

“It was like, OK, we’ve got all this other stuff done, now we’re going to drop the bomb in your lap.”

The bomb, in this case, was a schedule that created longer work windows, but excluded the prime weeks of July that prospectors claim are critical to their success. Those same weeks, biologists say, are even more critical to the fish that populate and spawn in those streambeds.

“The probability of eggs still being in the gravel still existed in July,” said Greg Hueckel, the WDFW’s habitat program assistant director. “I have to be conservative. If the activity has the potential of damaging fish redds (egg nests), I cannot allow the activity to occur.

“It’s that simple.”

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To Richard Holcomb of Tacoma, it’s this simple: The president of the 200-member Bedrock Prospectors believes the new mining rules will drive some prospectors out of the business.

The old rules allowed Holcomb onto his prospecting claim near Blewett Pass from July 1 through Oct. 31. Now that work window will shift to Aug. 1-Feb. 28.

“By the first of August, usually there’s not any water up there,” Holcomb said. “And then you’ve got the snow where you can’t get in there.

“And then you’ve also got hunting season. That woman who was shot by that kid? (On Aug. 2, a 14-year-old Snohomish County hunter killed a hiker he mistook for a bear.) She was wearing a blue coat. For the most part, our waders and wetsuits are dark colors, and as far as I know, they don’t make them in hunter orange.”

Holcomb wonders why, if fishermen are allowed in many of those same rivers and streams on June 1, why not prospectors?

“The fishermen, they can stand shoulder to shoulder on, say, the Puyallup River, and the fish and wildlife people, if we’re out on a gravel bar in the middle of the river, they’ll come out and give us a ticket,” Holcomb said. “(Fishermen) are out there wading in the stream long before we get into the streams.”

The WDFW has received dozens of faxes of a generic affadavit, signed by prospector senders, each saying he has “never killed a fish, dredged up eggs or found any fish eggs or baby fish in the streambeds.”

Said Holcomb, “I’ve never seen a redd when I was out dredging.”

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It’s not that simple, according to Perry Harvester.

The Yakima-based habitat biologist, the primary author of the new rules package, said even experienced biologists can’t recognize the tiny, essentially camouflaged redds after their construction within the stream bed.

“These people that are making these statements, it’s like trying to prove a negative; they’re saying they’ve never disturbed a redd, but they’d never know if they did,” Harvester said. “The eggs are very small, very translucent and very difficult to see.”

Redds vacuumed up through a dredge will suffer 100 percent mortality, Harvester said, adding that additional downstream redds can be covered and suffocated by the sediment kicked up from those dredging operations.

Harvester said the work windows have become more restrictive simply because updated science demands it.

“We certainly know more now than we did then about the embryonic history of the fish,” he said. “We cannot permit dredging — or any other activity, for that matter, that would disturb or excavate the stream beds when we know we have redds there.”

But, say prospectors, what about the environmental good their process can provide? In three hours of dredging on the East Fork Lewis River last fall, Atkinson removed nine pounds of lead. This year he dredged five days in the same area and hauled out another 52 pounds of lead.

“We find bullets, we find lead shot, buckshot and things like that,” Holcomb said, adding that the Department of Ecology this year honored the state’s small-scale miners for the amounts of mercury they’ve removed from Washington rivers.

“And when we go up in the spring,” he said, “we probably pull out seven, eight bags of trash that the hunters have left.”

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It’s this simple, says Hal Anthony: The state doesn’t have the authority to do what it’s doing to miners.

An Oregon resident who has a mining claim, Anthony has done exhaustive research into the federal mining acts of 1866 and 1872. In those acts, the United States essentially handed its mineral estate interests to miners, presumably as an enticement for continued pioneering and exploration — and, of course, excavation of the minerals needed for the growth of the young country.

Those acts, declares Anthony, give a certain ownership to the mining community.

“The way the Washington agency wants to have it,” Anthony said, “they forget who already owns the property. They want to issue a permit, and a permit is a license — it’s a fee, a taxation if you will. If you do that, essentially the license means permission to do what would otherwise be unlawful.

“When Congress gave these (mining) grantees this property, how did this state or any agency determine it was unlawful for them to do it? It makes no sense. That’s how you know this whole thing has been put on its head. The authority isn’t from the bottom up, it’s from the top down.”

But things have changed and so has the law, says WDFW’s Hueckel, who teaches environmental policy at Centralia Community College.

“Policies were different then, life was different, the population was different,” Hueckel said. “There really wasn’t any wakeup call for the environment until as far as the 1930s and ’40s. When you make laws for practices, they are still there until they’re overturned. My attorneys have told me the 1872 mining law does not preclude environmental law to protect the public’s resources.

“The work windows are set based on when we believe fish eggs are still in the gravel. No eggs? Have at it, guys. Eggs? Naah. Stay out of the water.”