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waters, but elsewhere, to the alleged injury of navigation. Two cases have been decided in the circuit court for the ninth circuit, northern district of California; one in the matter of the North Bloomfield Gravel Mining Company, opinion dated October 5, 1892, the other in the case of the Brandy City mines, under the same date.
These cases touch closely the operations of this Commission as detined by the act of March 1. The reason assigned for refusing an injunction against the North Bloomfield Company, and those assigned for granting an injunction in the second case, mark an important distinction between detritus impounded in the beds of streams subject to freshets, tributary to navigable waters, and storage in reservoir sites not traversed by natural water courses.
These decisions are appended, marked C.
Mining operations have disclosed the fact that the deposits of aurif. erous gravel are in the beds of extinct rivers, lying high on the western flanks of the Sierra Nevada, one to several thousand feet higher than the adjacent modern rivers. It is assumed that existing rivers have cut their channels since the period during which the ancient rivers became first filled, and then obliterated, by overflow of eruptive matter. The excavation of these channels in past years by the hydraulic process, to the extent of many million cubic yards, has left large cavities, now available for refilling with new detritus. These pits are adinirable reservoir sites. They are bounded by side walls of rock, often from one hundred to several hundred feet in height. In width they vary very much, being in places as much as a thousand feet. No natural water course traverses them and the natural drainage is of little extent. To refill them is to restore them to the state of nature, making them no more a source of contribution of earthy material to the streams than are the natural slopes adjacent. If barriers to restrain are necessary they are so only during the process and duration of mining. The barriers may afterwards decay, but the detritus remains impounded. This circumstance was recognized by the court in its refusal to enjoin the North Bloomfield Company, and it is the key of the decision.
It is, however, true that these sites are not profitably available for storage in quantities at all approaching the contents as they were in a state of nature. Some of them may not be at all practicable sites for any great amount of storage. This is due to the fact that often there is not fall enough from the gravel to be mined to the level of the reservoir site. A fall of at least 100 feet to the mile is generally necessary to enable the sluices to carry the detritus. Much more fall than this is used when available. The fall diminishes as the reservoir becomes filled. The limit of profitable mining may be reached before the best ground in the mine, that which lies lowest, is broken.
Under such circumstances the miner has a resource in elevating the gravel. This is done by using a large portion of his water power to raise the material to a higher level. It is practiced to some extent. It lessens very much the quantity that can be worked in a given time by a given water power. Nevertheless it has been used to lift to heights as great as 80 feet.
A second point worthy of attention in the decision in the North Bloomfield case relates to the condition of escaping water, wasted after it performs its full mining duty. The court practically holds that if the sand and gravel be restrained it is not to be insisted that the residual water shall be clear, the evidence proving that the finely divided clay, which gives color to the water, is nowhere deposited in appreciable quantity.
Apart from these reservoir sites and from such natural sites as may fulfill equivalent conditions of safe storage there remain for deposit the beds of natural water courses. Storage here is not so favorable. These streams are subject to freshets. They have falls of many feet to the mile. In some cases the streams in freshets may be termed torrents. Two cases may be distinguished, first, where the barriers are overtopped, and second, where a separate channel is made. Overfall barriers are subject to danger of destruction by violence of flood, and, if built in wood, sure to decay in a few years; so sooner or later there comes a time when they no longer retain material deposited behind them.
Independently of these considerations the equilibrium of a river bed of movable materials, over which unequal flowage occurs, a rivulet at one season and a torrent at another, can not be regarded as constant under these different circumstances. There is probably no constant slope of equilibrium. It varies with the flowage. While, therefore, a barrier placed across the bed of such a stream must restrain, it can hardly be said to restrain all, and perhaps not nearly all, deposits. The wider the bed the smaller the freshets, and the thinner the height of overfall the more effectually will the barrier restrain.
A modification, which passes the flowage in a separate channel and permits no overfall at the barrier, relieves the structure from the more imminent perils. Yet the water course passes over and through the reservoir and while the barrier, so long as not overtopped, may be safe, yet uncertainty exists as to the efficiency of storage after a time, due to causes already mentioned. Moreover, mining ceases in time. Its residuum remains. In what way are natural decay or particular damage to a restraining system to be repaired? If the stream has little or no natural drainage the case is simpler.
Deposits in beds of streams subject to freshets is quite fully discussed in Justice Gilbert's decision on the Brandy City mine.
The gold-mining industry is important in its bearing upon the general interest of the United States as well as upon local property, and the risk is so great that unnecessary or ill-advised restrictions and limitations upon mining activities are to be carefully avoided. On the other hand, the great amount of material that has to be handled and stored by the hydraulic process to get a little gold makes the problem of secure impoundment and of protection to navigable waters and adjacent lands one of difficulty and seriousness.
Between these opposing and delicate conditions this commission has to pick its way.
REWORKING OF DETRITUS.
The definition of hydraulic mining has been given. It is mining by water under pressure directed against a natural bank. It has also been mentioned that throughout the period of controversy old tailings have been reworked without restriction by the courts, or opposition of the people of the valleys. This work does not come within the definition of hydraulic mining. No nozzle is used and water is not used under pressure. The tailings are shoveled into sluices and the gold is separated through the shifting agency of running water, by the aid of riffles, and amalgamation with quicksilver. The effect is to move material from one place to a lower position. The work has hitherto been confined to the beds of streams filled with tailings. The operation does what the freshets do, that is, it moves material downstream. There is no great objection to this process confined to beds of streams. Doubtless it disturbs and transports some finer matter which might never have been otherwise displaced, but this is of no particular importance.
The case is somewhat different when applied to deposits impounded in beds of streams or elsewhere. It is quite practicable, and, so far as known, permissible under the law, to work by sluices tailings which have been kept out of the river beds by barriers or otherwise, and to deliver them reworked to the beds of streams, in positions from which damage to navigable waters may result.
As the law stands, so far as the act of March 1, 1893, is concerned, while the hydraulic miner is required to deposit his tailings securely, the sluice miner may, perhaps in a legal manner, remove the tailings from the reservoir without any obligation to restrain them in their new positions.
Perhaps the scale of this kind of work may be so small as to be unworthy of notice, and perhaps if it should become important the courts would intervene by injunction, under section 6 of river and harbor act, approved September 19, 1890.
IMPROVEMENT OF THE RIVERS.
In addition to its duties for the regulation of hydraulic mining the Commission is required by the provisions of the act to mature plans for the improvement of the rivers whose channels have been injured by débris resulting from mining operations, and to survey and determine the practicability of storage sites in the tributaries or in the plains, basins, swamps, and tule lands adjacent to said rivers for storage of water or débris, or as settling reservoirs in connection with the improvements of the rivers, by preventing deposits of débris therein, or for affording relief in flood times, or for flushing reservoirs in low-water season, and in general to devise methods whereby hydraulic mining can be carried on without injury to the navigable rivers. While mining operations are being carried on under its authority, the Commission is further required to make surveys of the rivers from time to time to ascertain the effects therein of said operations, and also the effects of erosion, natural and otherwise.
From the date of its organization the attention of the Commission has been fully occupied with matters relating to the resumption of hydraulic mining, and to the individual duties of its members, and no time has been afforded for the consideration of the extensive measures outlined above. During the coming season it is proposed to make such surveys and examinations as may appear necessary to fulfill the requirements of the law.
For a number of years past, under appropriations made by various river and harbor acts, operations have been carried on upon the improvement of the rivers injured by mining débris, with a view of affording a navigable depth of channel adapted to the present demands of commerce. In addition, plans of improvement have been recommended and estimates presented by boards specially convened to consider the subject. Under the provisions of the act approved October 1, 1858, a commission was appointed to investigate the hydraulic min
ing question, and in connection therewith to present plans for the improvement of the rivers. This commission recommended the treatment of the shoal places in the Sacramento and Feather rivers; the construction of a dam at De Guerre Point, on the Yuba, for the purpose of restraining the debris lying in the stream above, and restriction works on the Yuba plains below the foothills.
The improvement of the Sacramento and Feather rivers was again made the special subject of report by a board of engineers, under the provisions of the river and harbor act of September 19, 1890. The recommendations of this board included the improvement of the shoal places in the Sacramento and Feather rivers and restriction works on the Yuba above Marysville.
The maps of all the surveys made in connection with the improvements made and proposed are at the service of this Commission.
The balance on hand from the appropriation of $15,000 made by the act of March 1, last, for the expenses of the Commission is $13,828.44. It is estimated that an additional amount of $20,000 will be required to make the surveys and investigations required by the act.
In regard to the provisions of section 25 of the act of March 1, 1893, in which the recommendations contained in Ex. Doc. (H. R.) No. 267, Fifty-first Congress, second session, and Ex. Doc. (H.R.) No. 98, Fortyseventh Congress, first session, are adopted by Congress, and directed to be made the basis of operations, the Commission desires to say that the restraining barrier described in these documents, situated at or near De Guerre Point on the Yuba River, is considered an advisable construction, to be soon undertaken for restraint of detritus now in the beds of the streams, in furtherance of the project for the improvement of the Sacramento and Feather rivers.
A suitable appropriation for this work will be $300,000.
While, of course, and of right, any error in fact or law, or judgment, committed by the Commission may be corrected in the courts, the Commission is, by the act of Congress, left very much to its own discretion, and is compelled to rely mainly upon its own judgment. Being unprovided with a legal adviser it is of necessity compelled to its own conclusions in deciding certain legal points in despite of the fact that its members can not lay claim to legal knowledge or experience.
An illustrative case has occurred: A party presented an application in which he stated that he was the owner of the mining property which he desired to mine. The attorney of the Anti-Débris Association controverted the proposition that the applicant was the owner, and offered to present proof that the property had been sold to another party by the United States marshal, and that this party held the deed. The attorney urged that the Commission is required by the act to take notice of this fact, and to refuse a permit for the reason that the law coufines permits to proprietors. On the other hand the applicant was in possession of the property, claiming to hold by a deed from the sheriff of Nevada County, who had sold the property to meet unpaid taxes.
The Commission considered these points. It appeared first that the Commission is not empowered, and is not, by its constitution, capable of deciding disputed questions of title—that the court of law alone can decide such questions; that if the Commission undertakes to do so, its operations may be clogged and nullified in many cases by appearance of a contestant, for many mining properties are in dispute.
In view of all the conditions, the Commission decided upon a rule of action to the effect that the party in possession, alleging in his verified application that he is the owner, is to be recognized as owner until the courts of law shall have determined otherwise.
Appendix D is a copy of an act of the legislature of California, providing for a State débris commissioner, and defining his duties.
Mr. John F. Kidder, C. E., has been appointed. He has accompanied
G. H. MENDELL,
, Corps of Engineers.
W. H. HEUER,
Major, Corps of Engineers. Brig. Gen. THOMAS L. CASEY,
Chief of Engineers, V. S. A.
RULES AND INSTRUCTIOXS.
Sax Fraxcisco, June 3, 1893. 'The California Debris Commission, appointed under the act of Congress approved March 1, 1893, publishes for the information of all concerned sections 9, 10, 11, and 12 of the law which governs in the matter of presentation of petition and proceedings thereafter:
Src. 9. That the individual proprietor or proprietors, or in caso of a corporation its manager or agent appointed for that purpose, owning mining ground in the territory in the State of California mentioned in section three hereof, which it is desired to work by the hydraulic process, must file with said Commission a verified petition, setting forth such facts as will comply with law and rules prescribed by said Commission.
SEC. 10. That said petition shall be accompanied by an instrument duly executed and acknowledgeil, as required by the law of the said State, whereby the owner or owners of such mine or mines surrender to the United States the right and privilege to regulate by law, as provided in this act, or any law that may hereafter be cnacted, or by such rules and regulations as may be prescribed by virtue thereof, the manner and method in which the débris resulting from the working of said mine or mines shall be restrained, and what amount shall be produced therefrom; it being understood that the surrender :foresaid shall not be construed as in any way affecting the right of such owner or owners to operate said mine or mines by any other process or method now in use in said State: Prorided, That they shall not interfere with the navigability of the aforesaid rivers.
SEC. 11. That the owners of several mining claims situated so as to require a common dumping ground or dam or other restraining works for the débris issuing therefrom in one or more sites may file a joint petition setting forth such facts in addition to the requirements of section I hereof; and where the owner of a hydraulic mine or owners of several such mines have and use common dumping sites for impounding débris or as settling reservoirs, which sites are located below the mine of an applicant not entitled to use same, such fact shall also be stated in said petition. Thereupon the same proceeding shall be had as provided for herein.
Sec. 12. A notice specifying briefly the contents of said petition and fixing a time previous to which ail proofs are to be submitted shall be published by said commission in some newspaper or newspapers of general circulation in tho communities interested in the matter set forth tlierein. If published in a daily paper, such publication shall continue for at least ten days; it in a weekly paper, in at least three issues of the same. Pending publication thereof said commission, or a committee thereof, shall examine the mine and premises described in such petition. On or before the time so fixed all parties interested, either as petitioners or contestants,