Mining correction and information from a KBC
In the latest mining
article you posted there is some incorrect information.
"However, Craig Tucker, spokesman for the Karuk Tribe, points
out that miners do not have an “unfettered right” under the
General Mining Act to engage in activities that are harmful to
protected native species, in derogation of state and federal
environmental laws. Moreover, the State of California acquired
sovereign ownership of the beds of navigable rivers upon its
admission to the United States in 1850.
“The State holds these lands for the benefit of all the people
of California for statewide Public Trust purposes, including
fisheries and habitat preservation. No one has an unalterable
right to suck up streambeds in search of gold if such activities
cause harm to public trust resources,” said Tucker."
Actually, the CALIFORNIA CODES HARBORS AND NAVIGATION
CODE SECTION 100-107 states:
100. Navigable waters and all streams of sufficient capacity to
transport the products of the country are public ways for the
purposes of navigation and of such transportation. However, the
floodwaters of any navigable river, stream, slough, or other
watercourse while temporarily flowing above the normal high-water
mark over public or private lands outside any established banks of
such river, stream, slough, or other watercourse are not navigable
waters and nothing in this section shall be construed as
permitting trespass on any such lands. For the purposes of this
section, "floodwaters" refers to that elevation of water which
occurs at extraordinary times of flood and does not mean the water
elevation of ordinary annual or recurring high waters resulting
from normal runoff.
101. The following streams and waters are declared navigable and
are public ways: ...
103. Klamath River, from its mouth in Del Norte County to its
confluence with the Shasta River in the county of Siskiyou; but
this shall not abrogate or infringe upon mining rights or the
rights of locating or operating mining claims on the Klamath
River, existing on August 21, 1933, otherwise than by being made
subject to the public rights of way herein declared. " [Note no
other river in Siskiyou County is named.]
Donnelly v. U.S., 228 U.S. 243 (1913,) involved a homicide
that took place below high-water mark in the bed of the Klamath
River in northern California, riparian to the Hoopa Reservation.
Jurisdictional issues centered around ownership of the land.
Justice Pitney stated:
"Upon the question of government ownership, it is a matter of
history that the entire territory in question was a part of the
public domain that was transferred by Mexico to the United States
in the year 1848 by the treaty of Guadalupe Hidalgo. 9 Stat. at L.
922; United States v. Kagama, 118 U.S. 375, 381, 30 S. L. ed. 228,
230, 6 Sup. Ct. Rep. 1109.
"By act of September 9, 1850 (9 Stat. at L. 452, chap. 50),
California was admitted into the Union 'on an equal footing with
the original states in all respects whatever.' By 3 of the same
act it was provided 'that the said state of California is admitted
into the Union upon the express condition that the people of said
state, through their legislature or otherstate, shall never
interfere with the primary mary disposal of the public lands
within its limits, and shall pass no law and do no act whereby the
title of the United States to, and right to dispose of, the same,
shall be impaired or questioned; . . . and that all the navigable
waters within the said state shall be common highways, and forever
free, as well to the inhabitants of said state as to the citizens
of the United States, without any tax, impost, or duty therefor.'
"It is insisted that the Klamath is a navigable river; and
there is evidence in the record tending to show that the stream is
navigable in fact, at certain seasons, from Requa (near its mouth)
up to and above the locus in quo. But, in the view we take of the
present case, the question of its navigability, in fact or in law,
is immaterial except as it bears upon the title of the United
States to the bed of the stream. The present question is whether
that bed was a part of an Indian reservation, and that depends
upon the question of ownership. The jurisdiction to punish the
plaintiff in error for the murder of an Indian upon the
reservation depends upon other considerations, as will appear
"In passing upon the effect of the act admitting Alabama into
the Union, this court held, in Pollard v. Hagan, 3 How. 212, 11 L.
ed. 565, that the state had the same rights, sovereignty, and
jurisdiction over the navigable waters as the original states, and
could exercise all the powers of government which belong to and
may be exercised by them, excepting with respect to control over
public lands owned by the United States; and that the title of the
navigable waters, and the soil beneath them, was in the state, and
subject to its sovereignty and jurisdiction. In The Genesee Chief
v. Fitzhugh, 12 How. 443, 13 L. ed. 1058, it was settled that for
purposes of admiralty jurisdiction the tidal test, prevailing in
England for determining what is navigable water, is not applicable
to this country. In Barney v. Keokuk, 94 U.S. 324, 338, 24 S. L.
ed. 224, 228, it was held that it is for the states to establish
for themselves such rules of property as they may deem expedient
with respect to the navigable waters within their borders and the
riparian lands adjacent thereto. The court, speaking through Mr.
Justice Bradley, said (94 U.S. 338): 'The confusion of navigable
with tide water, found in the monuments of the common law, long
prevailed in this country, notwithstanding the broad differences
existing between the extent and topography of the British island
and that of the American continent. It had the influence for two
generations of excluding the admiralty jurisdiction from our great
rivers and inland seas; and under the like influence it laid the
foundation in many states of doctrines with regard to the
ownership of the soil in navigable waters above tide water at
variance with sound principles of public policy. Whether, as rules
of property, it would now be safe to change these doctrines where
they have been applied, as before remarked, is for the several
states themselves to determine. If they choose to resign to the
riparian proprietor rights which properly belong to them in their
sovereign capacity, it is not for others to raise objections. In
our view of the subject, the correct principles were laid down in
Martin v. Waddell, 16 Pet. 367, 10 L. ed. 997; Pollard v. Hagan, 3
How. 212, 11 L. ed. 565; and Goodtitle ex dem. Pollard v. Kibbe, 9
How. 471, 13 L. ed. 220. These cases related to tide water, it is
true, but they enunciate principles which are equally applicable
to all navigable waters. And since this court, in the case of The
Genesee Chief v. Fitzhugh, 12 How. 443, 13 L. ed. 1058, has
declared that the Great Lakes and other navigable waters of the
country, above as well as below the flow of the tide, are, in the
strictest sense, entitled to the denomination of navigable waters,
and amenable to the admiralty jurisdiction, there seems to be no
sound reason for adhering to the old rule as to the proprietorship
of the beds and shores of such waters. It properly belongs to the
states by their inherent sovereignty, and the United States has
wisely abstained from extending (if it could extend) its survey
and grants beyond the limits of high water. The cases in which
this court has seemed to hold a contrary view depended, as most
cases must depend, on the local laws of the states in which the
lands were situated.'
"The doctrine thus enunciated has since been adhered to.
Packer v. Bird, 137 U.S. 661, 669, 34 S. L. ed. 819, 820, 11 Sup.
Ct. Rep. 210; Hardin v. Jordan, 140 U.S. 371, 382, 35 S. L. ed.
428, 433, 11 Sup. Ct. Rep. 808, 838; Shively v. Bowlby, 152 U.S.
1. 40, 58, 38 L. ed. 331, 346, 352, 14 Sup. Ct. Rep. 548; St.
Anthony Falls Water Power Co. v. St. Paul Water Comrs. 168 U.S.
349, 358, 42 S. L. ed. 497, 501, 18 Sup. Ct. Rep. 157; Scott v.
Lattig, 227 U.S. 229, 243, 57 S. L. ed. -, 33 Sup. Ct. Rep. 242.
"The question of the navigability in fact of nontidal streams
is sometimes a doubtful one. It has been held in effect that what
are navigable waters of the United States, within the meaning of
the act of Congress, in contradistinction to the navigable waters
of the states, depends upon whether the stream in its ordinary
condition affords a channel for useful commerce. The Montello, 20
Wall. 430, 22 L. ed. 391; Leovy v. United States, 177 U.S. 621,
632, 44 S. L. ed. 914, 919, 20 Sup. Ct. Rep. 797; United States v.
Rio Grande Dam & Irrig. Co. 174 U.S. 690, 698, 43 S. L. ed. 1136,
1139, 19 Sup. Ct. Rep. 770; South Carolina v. Georgia, 93 U.S. 4,
10, 23 S. L. ed. 782, 783; The Robert W. Parsons (Perry v. Haines)
191 U.S. 17, 28, 48 S. L. ed. 73, 78, 24 Sup. Ct. Rep. 8.
"But it results from the principles already referred to that
what shall be deemed a navigable water within the meaning of the
local rules of property is for the determination of the several
states. Thus, the state of California, if she sees fit, may confer
upon the riparian owners the title to the bed of any navigable
stream within her borders.
"Now, a California Statute of April 23, 1880, chap. 122,
declared the Klamath river to be navigable from its mouth to the
town of Orleans Bar, which is above the locus in quo. But this was
repealed by act of February 24, 1891, chap. 14; and by an act of
March 11, 1891, chap. 92 (Political Code, 2349), an enumeration
was made of all the navigable rivers of the state. This is held by
the supreme court of that state to be exclusive, so that no other
rivers are navigable under the laws of California. Cardwell v.
Sacramento County, 79 Cal. 347, 349, 21 Pac. 763. The Klamath
river is not among those thus enumerated, and it must therefore be
treated as not navigable in law. And it will be observed that it
was thus placed in the category of non-navigable streams prior to
President Harrison's order of October 16, 1891, by which the
Extension of the Hoopa Valley Reservation was established.
"In the important case of Lux v. Haggin (1886) 69 Cal.
255, 335, 337, 10 Pac. 674, the supreme court of California, after
pointing out that upon the admission of that state into the Union
'upon an equal footing' with the original thirteen states, she
became seised of all the rights of sovereignty, jurisdiction, and
eminent domain which those states possessed, and that under 3 of
the act of admission (9 Stat. at L. 452, chap. 50) the lands of
the United States not reserved or purchased for fortifications,
etc., are held as are held the lands of private persons, with the
exception that the state cannot interfere with the primary
disposal of them nor tax them, and that the navigable waters are
common highways, free to the inhabitants of the state and to
citizens of the United States, -proceeded to declare that whether
this act did or did not operate as an immediate transfer of the
property in non-navigable rivers to the Federal government, the
legislature of the state, on April 13, 1850, passed an act
adopting the common law of England, so far as not repugnant to or
inconsistent with the Constitution of the United States or the
Constitution or laws of the state of California, as the rule of
decision in all courts of the state, and that in view of the
subsequent judicial history of the state this act must be held to
have operated, at least from the admission of the state into the
Union, as a transfer to all riparian proprietors, including the
United States, of the property of the state, if any she had, in
the non-navigable streams and the soil beneath them. The authority
of this decision was recognized in Packer v. Bird, 137 U.S. 669,
34 L. ed. 820, 11 Sup. Ct. Rep. 210. We are not able to find
that the doctrine declared in it has since been departed from by
the courts of the state.
"It thus appears, from the course of legislation and
adjudication by the appropriate authorities of California, not
only that the Klamath river has been placed in the category of
non-navigable streams, but that the title of the United States to
the bed of it where it runs through the public lands has been
distinctly recognized. In short, by the acts of legislation
mentioned, as construed by the highest court of the state,-(a) the
act of 1850, adopting the common law, and thereby transferring to
all riparian proprietors (or confirming in them) the ownership of
the non-navigable streams and their beds, and (b) the acts of
February 24 and of March 11, 1981, declaring in effect that the
Klamath river is a nonnavigable stream,-California has vested in
the United States, as riparian owner, the title to the bed of the
Klamath, if in fact it be a navigable river. If in fact it be
non-navigable, it is obvious that the same result flows from the
mere adoption of the common law.
"From this it results that whether the river be or be not
navigable in fact, the river bed is to be deemed as included
within the Extension of the Hoopa Valley Reservation."