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» Miners Rights Vindicated

By Dave McCracken

In a 37-page decision by United States District Judge Saundra B. Armstrong on the 1st of July, 2005, a Summary Judgment Motion by the Karuk Tribe of California to prevent the U.S. Forest Service (USFS) in the Klamath National Forest from allowing any in-stream mining activity without first requiring years of exhaustive environmental evaluation – was DENIED!

This case was filed by the Karuks in late 2004 against the USFS, on the grounds that in-stream mining activity requires a heightened level of environmental scrutiny pursuant to clauses within the Northwest Forest Plan (which affects 19 forests in California, Oregon & Washington State) and the Klamath National Forest Plan.

As the outcome of the litigation would affect small-scale miners more than anyone else, under the banner of The New 49’ers, numerous small scale miners along with multiple mining organizations pulled together the necessary resources to retain very competent attorneys to intervene in the litigation on our behalf.

During the litigation, it became clear that not only did the Karuks and their environmental allies want to stop all of the small-scale mining activity within the Klamath National Forest, but they had their sights set on stopping mining throughout the entire Pacific Northwest. The general nature of the legal arguments concerning this case, and the final decision, should have some impact on most small-scale mining activity in the western United States.

As the litigation was a challenge to USFS Agency decisions, it was decided early on in the litigation that the full case would be decided by Judge Armstrong in a Motion for Summary Judgment. Therefore, this decision puts an end to this particular litigation.

The Karuk’s argued that the USFS was bound by the language within the Northwest Forest Plan which requires any and all mineral activity within the high water marks of active waterways to be managed through a formal Operating Plan (Operating Plans can take years to process).

Both the USFS and the Miners argued that the general mining law and existing mining regulations do not grant any authority to the USFS to manage mining or prospecting activity which does not create a significant disturbance of surface resources in the National Forest. Therefore, we argued, that the Northwest Forest Plan could not create an authority over miners and prospectors which did not exist in the first place. The judge agreed.

I encourage all miners to read the full decision, because it provides excellent education specifically how the federal courts today are interpreting the rights of miners. Here follow just a few excerpts from Judge Armstrong’s decision:

“Third, Plaintiff’s [Karuk Tribe] argument utterly ignores the fact that mining operations take place pursuant to the General Mining Law and the Surface Resources Act, which confers a statutory right upon miners to enter certain public lands for the purpose of mining and prospecting. This distinction is significant, as it differentiates mining operations from “licenses, contracts, leases, easements, rights-of-way, permits, or grants-in-aid,” which are permissive in nature”.

“Further, Plaintiff’s [Karuk Tribe] assertion that the standards and guidelines [language in the Northwest Forest Plan] have the ‘force and effect of binding law’ is flatly contradicted by the explicit language in the Northwest Forest Plan. Specifically, the Northwest Forest Plan provides that its standards and guidelines ‘do not apply where they would be contrary to existing law or regulation, or where they would require the agencies to take actions for which they do not have authority.’”

“By the Plan’s own terms, the mining regulations supersede the requirements of MA 10-34.”

“Indeed, as Defendants argue, Plaintiff’s narrow reading of the Klamath Forest Plan is untenable in light of numerous regulatory and statutory provisions that apply to mining in national forests and blatantly ignores the fact that, pursuant to the General Mining Law and 36 C.F.R. Section 228, the Forest Service may not interfere with mining that is not likely to result in a significant disturbance of surface resources.” (emphasis added)

This, in my own view, was one of the most important and dangerous cases our industry has had to defend against in a very long time. I am happy to announce that it is the end of a very stressful chapter (fear of losing). I cannot express how relieved I personally am that this decision came out so strongly affirming the rights of miners, and acknowledging that the USFS has pursued a very consistent management approach, despite conflicting statutes which also require environmental protection.

The positive result of this litigation is that the USFS has been forced to clearly define the fundamental rights of miners, and the federal court has affirmed them.

We should not overlook that the USFS performed admirably to acknowledge, affirm and support the mining rights in this litigation.

I want to thank out two attorneys, James Buchal and Dabney Eastham who worked tirelessly on our behalf. And I want to express my most heartfelt gratitude for the many, many supporters out there who have made financial contributions so we could stay in the game.

This, indeed, is a sunny day for small-scale miners!

Dave Mack

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