New 49'er Newsletter

SECOND  QUARTER, JUNE 2012                                VOLUME 26, NUMBER 6

Many of you will recall that we have been engaged in litigation with anti-mining activists who have been attacking us through the Karuk Tribe of California since 2003.  It all started with their lawsuit against the U.S. Forest Service (USFS), challenging that District Rangers do not have the authority to allow small-scale mining activities under a Notice of Intent (NOI) when the Ranger concludes that the mining activity is not likely to create a significant surface disturbance.

USFS regulations do not require a prospector to provide an NOI to the local District Ranger unless the prospector believes his activity might cause a significant disturbance.  Once the Ranger receives an NOI, if he believes there is likely to be a significant disturbance, he has 14 days to inform the prospector that a formal Operating Plan is required.  In that event, the regulations provide authority for the Ranger to stop the mining activity until the Operating Plan is approved.  Depending upon the circumstances, it can take a long time to gain approval of an Operating Plan.

USFS regulations do not provide the Ranger authority to require a prospector to file an NOI.  Therefore, NOI’s are mainly a voluntary formality which prospectors normally do to cooperate and coordinate with USFS.  Under existing regulations, the Ranger’s only authority is generated by his “Decision” that a mining or prospecting activity is likely to cause significant surface disturbance.  In 27 years on the Klamath National Forest, this has never happened with our program.

Believing that it was a bad idea to allow USFS and anti-mining activists to fight between themselves over the rights of small-scale miners, we intervened in the litigation from the beginning.  We defeated the Karuks in Circuit Court, and then we defeated them again in the first round of the Ninth Circuit Court of Appeals.  Unfortunately, a few weeks ago, the Karuks succeeded in having the full Ninth Circuit overturn our win. Here is the full Decision. Here is also a short summary from our attorneys about the Decision.

This new development affects all USFS lands in America!

From my own perspective, since it is only required that an NOI be filed if the prospector believes there may be a significant impact, and the Ranger has no authority to require an NOI, this Decision has pretty much eliminated NOI’s from the ongoing relationships between prospectors and the USFS.  Said another way, based upon the existing USFS regulations, it looks to me like prospectors can proceed with our mining programs as before; and just like before, the Ranger only has the authority to step in and require an Operating Plan if and when he decides there is likely to be a significant impact.

The word “decide” has important legal implications as a result of this Ninth Circuit decision. Case in point:  Since the Ninth Circuit has determined that a District Ranger does not have the authority to make a “Decision” concerning the lack of a significant disturbance without first consulting with multiple other agencies, it also places doubt on the Ranger’s authority to “Decide” that a significant disturbance may occur (triggering the requirement of a formal Operating Plan) without also doing consultation with other agencies.

We have been in communication with the Mineral Officers within the several USFS Districts where we have mining property. They are still waiting for direction from USFS in Washington DC.  So it is still too early to know how this new development will affect our program, if at all.  In our case, in 27 seasons along the Klamath River, there has never been a Ranger that has required us to file a formal Operating Plan.  We have filed annual NOI’s as a volunteer, cooperative formality.  My guess is that we will probably have to stop doing that.

As a precautionary measure, I strongly suggest anyone planning to attend our scheduled weekend group mining events to register in advance with our office: 530 493-2012.

Now we must raise funds to appeal this terrible Decision to the Supreme Court!  It does not appear that USFS will file a Petition.  However, my guess is that they will submit supportive briefs if we file the appeal.  We have also been encouraged by two substantial conservative legal foundations that mostly take up property rights cases, suggesting they will also file supporting documents.

Since The New 49’ers is the only private organization defending the rights of small-scale miners in this particular litigation, besides USFS, I believe we are the only ones with standing to file the Petition with the Supreme Court. Going to the Supreme Court is not going to be cheap. Therefore, I am encouraging everyone to please support our ongoing legal-fund raiser. The drawing will take place at our weekly potluck in Happy Camp on Saturday, 7 July (2012). So there is very little time remaining before we will be giving away 15 American Gold Eagles:

Gold eagles

Grand Prize: 1-ounce American Gold Eagle
Four ¼-ounce American Gold Eagles
Ten 1/10th-ounce American Gold Eagles

The girls in our office automatically generate a ticket in your name for every $10 legal contribution that we receive ($100 would generate 10 tickets, etc).  There is no limit to the size or frequency of your contributions, or to the number of prizes you can win. Contributions can be called in to our office at 530 493-2012, or they can be mailed to The New 49’ers, P.O. Box47, Happy Camp, CA 96039.  Or you can do it on our web site by going here:  Make a Donation

Participation in this drawing so far has been so poor that we have not even raised enough money to cover the value of the gold.  This is not good. So I am hoping a bunch of you guys will jump in and give us a hand during the next several weeks.  Thank you for anything you can do! 

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The New 49’ers Prospecting Association, 27 Davis Road, Happy Camp, California 96039 (530) 493-2012