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» Karuk’s Challenge to California Dredging Regulations 7
Dave Mack

“Here is some further explaination of the Karuk Tribe Lawsuit against the California DFG to change dredging regulations…”

(Forum post dated 16 March, 2006)

Hello everyone,

For those of you who are not aware, this is about some ongoing litigation in which the Karuk Tribe has been suing the California Department of Fish & Game (DFG) for issuing suction dredge permits which allow dredging in Coho salmon habitat in northern California. There is a special page dedicated to this ongoing litigation on our web site.

To resolve the litigation, the Karuks and DFG have agreed to a Stipulated Settlement which eliminates suction dredging on some waterways and reduces our dredging seasons on others. The regulatory changes are very substantial; especially to people owning mining claims or private property along the waterways which would be closed to dredging by the Settlement.

As the lawsuit was quietly filed in Alameda County last May, which is hundreds of miles away from the affected areas, and no notification was ever given to anyone within the mining community from either DFG or the Karuks, we did not even become aware of the ongoing litigation until after DFG began implementing modified dredge regulations pursuant to their settlement with the Karuk Tribe.

As soon as we became aware of the ongoing litigation, our organization (New 49’ers) took the lead in representing the mining interests of our members, and we motioned the Alameda Superior Court to Intervene in the litigation. Luckily, the Court had not yet endorsed the Stipulated Settlement, even though DFG had already changed our suction dredge regulations to conform to the Agreement.

Over very strong objections voiced by DFG and the Karuk Tribe (arguing that miners had no rights in the matter), the Court granted us Intervention status on February 9th of this year.

Subsequently, both the Karuks and DFG have made two important motions in the case:

1) They have motioned the Court to formally endorse their Settlement Agreement which changes our dredge regulations without any public input, no formal hearing or any biological justification.

2) They have motioned to Court for Protective Orders against our discovery demands for the biological justifications supporting their decision to further restrict or eliminate dredge seasons.

In turn, we filed our final brief a few days ago opposing the Stipulated Agreement and reaffirming our need to acquire biological data which supports both the Karuk and DFG positions within the litigation. To date, the Karuks have only made general allegations concerning potential harm from suction dredging, and DFG has taken the position that the pre-existing suction dredging regulations provided adequate protection to fish. There is no evidence in the record showing any harm to any fish from suction dredging under the pre-existing regulations. Therefore, we believe it is very unreasonable for DFG to enter into a private agreement with the Karuks to impose further restrictions upon suction dredge miners! Under these circumstances, our demands for the biological information which DFG and the Karuks are relying upon seem more than justified.

Both the Karuks and DFG have argued in this case that they should be allowed to reduce or eliminate our dredging seasons in a private agreement amongst themselves, without ever having to provide any biological justification to anyone, not even the court. They have presented the Court with case law to support their position which basically states that Parties in civil litigation have the right to make any private agreement amongst themselves, as long as the parties agree.

In turn, we are making the argument that the California Environmental Quality Act (CEQA) mandates that agencies of the State are required to follow a very structured public process before it may adopt regulatory changes for an industry, and that this is not something the State has authority to trade off in a Settlement Agreement with an anti-industry group. We also argue that the case law which the Karuks and DFG rely upon does not allow two parties in litigation to settle their dispute by trading off rights or property which belong to others.

I believe these are the last filings in this case before the judge will decide what to do about these two issues. The hearing is scheduled for 9:00 AM on 23 March at Alameda County Superior Court, Department 512, Hayward Hall of Justice, 24405 Amador Street, Hayward, California.

Once again, we have done our absolute best to represent the interests of small-scale miners. Now we must see how the judge will decide. I encourage as many miners and prospectors as possible to be present during the hearing next week. Please be there if you can!

As I have said before, winning these days is mainly about raising money to pay the best attorneys we can afford.

The law is on our side. But we are up against very practiced and respected environmental law firms. Winning means having practiced and experienced attorneys on our own side who know how to make arguments which the judge will give careful consideration to. Anything short of that lessens the chance of preserving our rights. This is the way important matters are resolved in America today. To play the game, we need to be right in there alongside the best of them making our position heard. I hope you guys are in agreement with this strategy.

I want to express my sincere thanks to those of you who have responded to my requests for financial donations to help pay the attorneys that have been helping us with this case. Thank you! The need is a continuing one, so I encourage you to please keep the flow coming our way. In turn, we will do our absolute best to hold the line for our side.

Let’s keep our collective fingers crossed for a favorable decision on the 23rd!

All the best,

Dave Mack

 

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