Dave Mack

Here is an important note from Dave McCracken, President of The New 49’ers …


Most of the information on this web site was created over a long time span (since the early 1980’s) when, for a nominal permit fee from the State, Americans were free to prospect for gold and other valuable minerals in and around most of the waterways in California and Oregon. There were thriving prospecting industries all through the 80’s, 90’s and early 2000’s. This activity did a lot to support rural communities.

The small-scale gold mining industry was very carefully regulated in both States to protect fishery resources. The most recent extensive study performed by Southern Oregon University concluded that the cumulative impact of all the in-stream mining in the State was so small that it could not be measured. In fact, while both States issue fishing licenses (license to kill or harm) by the thousands, there is no evidence on record that suction dredge mining ever harmed a single fish — even when those conducting studies attempted to harm fish using suction dredges. The fish were too fast. Fish eggs and juveniles were protected because the regulations did not allow suction dredging in the locations during the times of the year when they would be vulnerable.

In 2009, the California legislature passed the first State-wide moratorium on suction dredging. An honest look at the history will lead any reasonable person to the conclusion that the ban on suction dredging was/is politically motivated. Oregon passed it’s moratorium shortly thereafter. The moratoriums have been changed over the years, each time with the purpose of stopping more and more methods of prospecting.

As it is now in California, any mechanized device used to help excavate or process material for the purpose of mineral recovery within 100 yards of an active waterway is defined as a “gold dredge.” This would include something as small as a 12V bilge pump, or a hand pump, devices which are being used in most boats in the State. Mechanized devices for any other type of activity is allowed. It is only mining that has been signaled out. Suction dredging without a permit is against the law. California stopped issuing dredge permits in 2009.

In cooperation with other industry associations, we sued the State in California Superior Court. The lawsuits, in their various forms, went on for about 9 years and cost our industry around a million dollars. Ultimately, the Third Appellate Court of California unanimously found for our side, concluding that the State does not have the authority to impose regulation upon mining the public lands if such regulation would undermine the viability of a mining program. Shortly thereafter, San Bernardino District Court issued a Decision that the State was breaking the law by pursuing a scheme to end all mining in the State. Then the California Supreme Court reversed the Third Appellant’s Decision, basically stating that the State has the authority to weigh different factors and impose any amount of regulation over mining on the public lands.

Our first attempt to have the U.S. Supreme Court review our case made the final cut (they only accept around 5% of the cases sent to them), but ultimately our case was rejected.

Several years ago, some of the mining associations in Oregon pooled their resources and filed suit in federal district court against the Oregon dredging moratorium (JOSHUA CALEB BOHMKER, ET AL. v STATE OF OREGON). They lost in district court, and then they lost again in the Ninth Circuit Court of Appeals.

More or less, the legal question in Oregon is the same as in California. I’m not going to go into all the legal theories here. A brief explanation is that the federal mining law allows every American freedom to prospect for gold and other valuable minerals on the public lands. In the event that a viable mineral deposit is located, the prospector has a right to claim the deposit as his own property (just the minerals), and there is an automatic contract with the federal government allowing the deposit to be developed. There is ample controlling case law that has evolved over hundreds of years that prohibits the federal government from imposing rules or regulations that would unreasonably inhibit the development of a viable mineral deposit.

So our question to the courts is: How is it that we have a rock solid agreement with the federal government that we can develop the deposits we locate on the public lands through our own hard work and financial investment; and then a State can come in and prohibit us from mining?

The New 49’er Legal Fund has sent funds to the attorney in Oregon who will file a petition with the U.S. Supreme Court to review the Oregon Decision. Other industry associations are also contributing. Several large law foundations will also submit briefs supporting our side. The draft for our Petition has already been completed. The outcome of this case is likely to affect mining on all the public lands in America, including those in California.

There is a reasonable chance that the U.S. Supreme Court will review the Oregon Decision. Besides being extremely important to future economics in America (all material wealth originates from raw minerals), when the Solicitor General recommended the Supreme Court not review our California case, his reasoning was that the Oregon case framed the legal question more clearly over federal supremacy on the public lands.

Therefore, until further notice, in California, we can only use hand methods to excavate or process minerals within 100 yards of an active waterway. Oregon’s regulations are more difficult to understand. The regulations basically prohibit mechanized mining in any waterway that has been designated as essential salmon habitat (ESH). Unfortunately, all or most gold bearing waterways in Oregon have been designated as ESH.

The bottom line is that we do not believe these moratoriums are rational or legal, and we will continue to fight on behalf of small-scale miners. Having said that, if you are caught by the authorities using mechanical devices to prospect for or process gold along an active waterway, you will be written a criminal citation and your gear will be confiscated. Then you will be prosecuted. Our Legal Fund has paid to defend several members. The outcome is that our attorney has been able to get the fines reduced on the condition that the prospectors pledge to the court that they will not do mechanized mining activity unless the law is changed.

Meanwhile, all our mining properties remain open to members; and to my knowledge, no prospectors are being hassled by authorities for using conventional pick & shovel hand mining methods like gold panning or sluicing. Our long term camping areas remain open to all members. Our Internal Affairs guys remain active. And while the girls remain in our office and man the phones from 9 am until at least 2 pm between Monday and Friday. Sometimes bad weather or other circumstances prompt our office to close early. So it is a good idea to call before you make the trip: 530 493-2012.

If you are a member in good standing, you do not need to visit our office before enjoying the properties we make available. We do request that all members inform our office where you are camping or prospecting on our properties. This can be done over the phone, or you can come into the office to sign in when the office is open. More than anything else, this is so we can find you if we receive a call from someone in your family that needs to contact you.

The great outdoors of the Pacific Northwest remain as captivating as ever! My advice is to enjoy the opportunities we have while we continue to challenge unreasonable laws or regulations that stand directly in the path of the national effort to make America great again.


Dave McCracken, President

The New 49’ers