Dave Mack

“We need your help now more than ever…”

Update concerning SB 670

As many of you are already aware, Senate Bill 670 (anti-suction dredging legislation) was overwhelmingly passed by the California Senate several days ago. The bill will now go to the California Assembly. Our staggering defeat in the Senate has our lobbyists in a full regroup mode, and I have asked them to perform a very careful evaluation of our prospects for success in the Assembly. This, so that we can decide if we still have a reasonable chance of killing this harmful bill there, or will only be wasting our time and limited resources.

If SB 670 passes in the Assembly, we will have one remaining opportunity to kill the harmful legislation by asking governor Arnold Schwarzenegger to veto the bill.

In the event that SB 670 is passed into law (would likely happen in September or later since California is struggling with crippling budgetary problems), no further suction dredging would be allowed in California’s active waterways until the Department of Fish & Game (DFG) completes an updated Environmental Impact Report (EIR) and adopts new or revised suction dredging regulations if necessary. As this will take some time to complete, our 2010 (and perhaps 2011) season(s) hangs in the balance.

Since our financial resources are limited, and because we are up against what appears to be overwhelming support for the legislation, we need to carefully weigh our prospects for success (at killing the legislation) with perhaps a more effective solution of challenging the new law (once passed) in federal court based upon a strong legal theory that the State of California does not possess the authority to bypass its own Formal Administrative Process and eliminate our federal mining rights (especially since no evidence has been brought forward that suction dredgers have ever harmed a single fish).

To help you become more informed of ongoing developments, I have asked our lobbyists to provide an Update Memo.

Update Concerning Ongoing Litigation

All of this recent legislative activity (which will affect future dredging seasons) is happening under the darker cloud of ongoing litigation against suction dredging (which could have an impact upon our present season) in California. This is taking place in Alameda Superior Court (San Francisco Bay area).

Our adversaries recently filed a Motion with the Court for Injunctive Relief. They are asking the Court to prevent the Department of Fish & Game “from spending any funds allocated from the State of California’s General Fund on any activities which allow suction dredging to occur under the Department’s current regulations.”

Here follow the important moving Documents our adversaries have filed in support of this Motion:

Now; here follow our key responsive documents to the Motion for Injunctive Relief:

For those of you who have the time to review these documents, I believe you will understand and agree why I keep repeating that we have hired the best legal representation that money can buy! We are sooooo lucky to have James Buchal on our side!

While nobody can predict what a judge will do, I can tell you with complete certainty that we as an industry have done our absolute best at defending the rights of small-scale gold miners. We could not do it any better than we have!

There has been an enormous amount of legal activity during the past month, of which the briefs listed above are just a few. Basically, our adversaries are wasting no effort in an attempt to take away our mining rights without having to show that we have ever harmed a single fish!

Rather than go into all the details here, I have asked James Buchal to provide you with a short Litigation Summary from his own perspective.

Mr. Buchal’s opening statement about “fast and furious developments” in the litigation is truly an understatement. Since my job is to manage the ongoing legal defense and political activity on your behalf, I make it a personal responsibility to read all of the legal briefs and provide technical support and encouragement to the specialists who we are paying to defend our industry. And let me just tell you that we are really up against an awesome opposing force within the litigation. It is all I can do to keep up with the ongoing exchange of legal briefs and telephonic hearings!

In fact, there has been so much activity during recent weeks, our attorney was forced to devote an entire sleepless night just to meet filing deadlines with the Court on one round of opposing briefs. The Litigation Summary provided above was sent to me at 4 am on Saturday morning on Memorial Day weekend! We certainly have the right kind of guys on our side!

While the opposing briefs are ongoing, for our part, we will just have to see where the chips fall on June 9th. And then we will pick up from there and move forward as necessary. I’m sure you guys and gals will all stay tuned in!

Yes, I know there will be a million questions about what the Proposed Order means. And I can tell you with certainty that your guess would be as good as mine or anyone else’s at the moment, including the attorneys who are involved.

On legal matters such as these, I suggest that each of us must make our own individual choices. For me, since DFG is presently selling 2009 suction dredge permits (at least until 9 June), and they have already made a Formal Decision that they have no valid environmental justification to enact Emergency Regulations to stop suction dredging, I have already bought my own 2009 permit — and I fully intend to dredge this summer. It doesn’t sound like anything in this Motion will attempt to prevent me (or you) from doing that.

Our Next Moves

If the Motion for Injunctive Relief is granted by the Court, this would be one more reason for us to conserve our resources, cut our losses in the California legislature, and ask our attorneys to challenge California’s authority (in federal court) to bypass its own Formal Administrative Process and take away our federally-protected mining rights.

Therefore, we are in a holding pattern at the moment until we see what the Alameda Superior Court will decide in less than two weeks. This will allow our lobbyists time to survey our supporters in the California Assembly and provide us with a reality check on our chances of overcoming SB 670 through further political action.

Your Help is Needed Now to Support our Legal Fund!

I want to thank all of you who have responded to our past calls for financial assistance to help pay the specialists we have hired to defend our industry. Your help has pretty-much allowed us to stay even (until now) with the increased costs associated with all this additional legal and political activity.

However, I am informed that we just received an April legal billing in the amount of $13,433.50. On top of that, Mr. Buchal told me a few days ago that we should plan on his May billing to be more than April. June is also going to be high, because that’s when Mr. Buchal will need to attend at least one important hearing in Alameda Superior Court (June 9th).

Before you get your hackles up, I want to let you know that Mr. Buchal bills us at a reduced rate, and he does not charge us for all of his time. The existing situation has been taking up nearly all of his productive time. The value of his time billed through nearly any other law firm would cost so much that we would be forced out of the game!

Adding $3,000 for May lobbying expenses to James’ $13,433.50 for April creates a $17,433.50 outstanding liability to our legal fund — which presently has a balance of $ 4,276.98. This leaves us with a deficit of $13,156.52 with another legal billing on its way in just a few days.

This is an emergency!

We are fighting the biggest, hardest battles our industry has ever faced right now. You guys have always been there to help in the past. We need you more than ever right now!

Because our need to raise funds is immediate, once again, we have our ever-vigilant member, Jim Yerby, to thank for organizing yet another set of very valuable prizes for a prize drawing – which is already in progress. In addition to 53 very nice prizes which have been donated by others, we also are expressing big thank you to Jeff Kuykendal at Proline for donating a brand new 3-inch Proline dredge (worth $2,500.00) as our main prize, and to Louie Welding for donating a 2 ½-inch dredge/high-banker combo!

If anyone would like to contribute a prize towards our legal and political fundraising, please contact Jim at grizzwag@charter.net. What do you have that might be a good prize in our fund-raising?

Here is a link to the prizes included in this latest fundraiser.

The contributors of these prizes have authorized the girls in our office to print a ticket on your behalf for each $10 contribution that we receive from you ($100 contribution will generate10 tickets, etc.). This prize drawing will take place on 4 July, 2009. That is only about a month away! There is no limit to the number of tickets you can accumulate, or the number of prizes that you can win in this drawing.

Our girls are automatically issuing drawing tickets to every legal contribution that we receive from any of multiple ways of sending money. You can make legal contributions by calling into the office at 530 493-2012. You can mail a check to The New 49’er legal fund, 27 Davis Road, Happy Camp, CA 96039. Or you can also use a credit or debit card by using our new (secure) on-line form which can be found here:

Make a Donation

We need your help on this more than ever!

Thanks very much for whatever you can do!

Dave McCracken, President
New 49’er Gold Prospecting Association

The New 49’ers27 Davis Road, Happy Camp, CA 96039 (530) 493-2012