Dave Mack

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

(Forum Post by Dave on 12 January)

Hello you guys,

Believe me when I say that I appreciate the frustration about our adversaries possibly being able to recover their attorneys fees when they sue the government.

Sometimes the reason we are silent on some subjects is because it is not in the interest of our industry to talk openly about legal strategies on an open forum. I know this is also frustrating to some of you out there who contribute financially to our defense. Because we only speak generally about our strategies, perhaps you worry that we are missing something important. I would feel the very same way.

And I suppose there is a chance that we could miss something important. That is a really slim chance. We are fortunate to have really good attorneys working for our side; very experienced; and very committed to the principals that we stand for. So we are not missing very much.

I am not an expert on the area of Indian law, but my best understanding is that there are laws in affect that allow Indians to recover their attorneys fees when they sue the government and win. I read an article a few days go that the big environmental legal foundations are hustling around these days to file their lawsuits under the umbrella of federally-recognized tribes. I gather that this is somewhat of a cash cow for them.

The Karuk attorneys (environmental law foundations) motioned the federal court in last year’s litigation to recover just under $200,000 in their legal fees because they succeeded in forcing the USFS into a settlement on the issue of Operating Plans, even though all of their main claims in the litigation were over-ruled by the court. The USFS motioned the court to put the question of fee-recovery on hold until the appeal is settled, and my understanding is that’s what has been done. So I don’t think they have recovered any attorney fees in the federal litigation, yet.

As we are intervenors in the federal litigation on the side of the USFS, it doesn’t look like we can recover attorney fees there. I gather that there is some law in place that prevents us from recovering our legal fees from the Karuk Tribe. Our attorneys are of the opinion that we would spend more money than we have trying to recover, with little chance of success. Besides, even if we decide to try, we could not get anywhere until the litigation is finished. It won’t be finished until all of the appeals are exhausted. So it is still pretty early to debate over cost-recovery measures against the Karuks.

One of the posts on our forum makes a good point in this State litigation, in that we are intervening because a State Agency has made drastic changes in the way it is regulating our industry without following (any) due process. But it is still very early to be asking for cost recovery. First we have to win!! If the judge formally decides that DFG has acted against the law, it seems likely that we would have a reasonable argument to recover costs from the State. Please be confident that we would not miss this opportunity if it exists. But we still have a ways to go before we get to that point.

If you have contributed to the defense of our industry to the point where your financial reserves are almost gone, please back off. Since we have many thousands of people associated with our industry, my hope is that we can get smaller contributions from more people, rather than large contributions from fewer people who cannot really afford it. So let’s figure out how to get more people on the team. A single $10 donation from all or most of the people who will be directly affected by this litigation would easily put us over the top. Unfortunately, not everyone helps. And fortunately, some people help a lot. I assume this is what you are talking about.

I expect it has probably been about the same during the entire history of the fight for freedom; a smaller number of movers and shakers who have the confidence and support of just enough believers to keep the dream alive. As hard as we work, and as good as our lawyers are, we could not do it without you guys. Our industry would have been gone a long time ago if you guys were not ready to step up in our time of need.

Defensive measures will forever be necessary to protect the interests of small-scale mining. Just get used to it. The impulse to get rid of us (and all other productive enterprise in America) is not going to go away. Defense of our industry is an ongoing process.

If you are tired, take a rest, and hope that there are enough others who will support the industry until you can stand up again. Everyone understands this.

Here are two things to hope for:

1) Hope that those of us who are managing defensive measures for the industry at the moment (there are only a handful of us) do not get tired any time soon.

2) Hope that a new generation of movers and shakers will evolve within our industry to take things over as we do start getting tired

On the subject of movers and shakers, it takes a lot more than just making noise. I’m sure you guys know that. It requires a reasonable assessment of the problem, measured against available resources, to come up with workable solutions, and implement them to completion. It is a lot of work!

My personal assessment is that with your continued support, we do have the resources to overcome the legal challenges our adversaries will throw at us in the forseeable future. Just let’s not allow Congress to change the mining law!

I personally read every word of every brief that gets filed within the litigation we are managing. I cannot tell you the amount of time and work involved with developing the briefs and the Declarations that are filed on our behalf.

The bottom line is that we must defeat these regulatory changes which DFG is already imposing upon our industry. If a State agency is allowed to impose further restrictions upon our industry by secret agreement with an extremist-group, then the whole industry is at risk. There is nothing to prevent DFG (or other agencies) from making further secretive agreements to further-restrict mining elsewhere in California. In fact, that is certain to happen! There will be no end to it until they finish us off.

By the way, my suggestion is to not send in any application for a DFG dredge permit until we see how this litigation is going to settle out. There is still plenty of time before the beginning of the season.

I understand the feelings of frustration. I experience them, too. When you put heavy stress on any kind of structure, those supports that are doing the most to hold it all together feel the stress the most, sometimes grown the loudest, and can also be the first to break. It’s no different here. This is stressful.

But the good news is that I truly believe we are going to win this one. And when we do, the State is going to know that it cannot make any more court settlements to try and regulate our Industry. That will be another big win for us. And it will be another thing that our next generation of industry leaders will not have to defend against. While we may or may not recover attorney fees, the legal structure supporting our industry will be stronger. That is worth the cost!

We don’t really have any other choice but to fight on this one!

The other thing is that there are only so many ways our adversaries can come at us through the legal system. With last year’s big win, they have pretty-much exhausted their federal remedies. Now we are at the State level. I don’t want to tip anyone off, but I only see about two opportunities at the State level. Naturally, they are starting with the one they feel allows them their best chance of winning. Because of the nature of the way they have proceeded (in secret, behind closed doors to agree upon a settlement), this case is on a fast track to resolution of the key issues concerning how our industry will be regulated by the State. With just a little luck, these issues could be resolved by the court in just two weeks. That’s fast!

While I can be wrong about legal matters, I believe we will come out on top on this one.

But we still have to pay the specialists on our side. This is very important! Because we want them to be there for us the next time. Even if there isn’t one (wishful thinking), we must always plan for a next time! Since I am managing this one, I am naturally worried about paying our bills.

I agree that there may be an uneven playing field in that it is probably easier for the environmental law foundations to recover attorney fees through the Karuk Tribe, than it is for us to recover our costs while defending our industry. Especially since they are suing government agencies and we are only entering the litigation as intervenors. However, I don’t think they have been paid for anything yet concerning the litigation we have been involved in. Be assured, when those issues come before the judges, we will be arguing that they have nothing coming to them.

DFG did agree to reimburse the Karuk attorneys for their legal fees. But if we succeed in killing the Stipulated Agreement, the reimbursement provision will also be dead!

And listen, even if those attorneys eventually do get paid for their time, ultimately we should be glad that the government is responsible to pay for their good work on our behalf. While their motivations are not with us, their actions are succeeding in strengthening the legal structure that supports our industry! We are a lot better off than we were a year ago because of the federal litigation! We now have an opportunity to do the very same thing at the State level.

Through discussions with our attorneys, it does not appear that we have a reasonable chance of recovering our own attorney fees from the Karuk Tribe when they sue a government agency. There does not appear to be much of a solution there for making it cost them when we prevail over their attacks upon our industry.

The more reasonable approach is for us to be asking State and federal authorities why the Karuks are being allowed to kill the very same fish they are trying to protect from us? There apparently is no recognized fishing right under law. So it would seem that our complaint against the Karuks in court, using the very same arguments they make against us, could possibly go somewhere. We are in the early stages of exploring that.

Hang in there you guys. I’m asking that you extend a little faith that we are not missing much. I guarantee you that we are working hard to do the very best job that we can with what we have to work with. And, like last time, I believe it will be enough. Watch for our latest brief (Opposition to the Stipulated Agreement) in the next few days, and you will see what I mean.

Thanks,

Dave Mack

 

 
Dave Mack

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

(Forum post dated 29 January)

Hello Everyone,

The next round of briefs have been filed in the Karuk’s lawsuit against the California Department of Fish & Game (DFG). The key documents can be located on the special page we have created for this litigation. We have not put all of the documents up there, because there are just too many. A lot of effort is going into this litigation from all sides! While you guys are invited and encouraged to read the briefs for yourself, here is my own short summary about what is happening:

There are two important issues to be decided in the case at the present time. I understand both of these motions will be addressed by the Court during the upcoming hearing scheduled for 9 February in Alameda Superior Court.

1) Under The New 49’er banner, we have motioned to Intervene in the litigation. PLP has also submitted a similar motion to Intervene. Our position on this is that the Miners are actually the Real Parties in Interest, since it is our regulations that will potentially affected by the litigation.

In opposition to our Motion to Intervene, the Karuks have argued that we don’t really have any property rights because we are just a bunch of recreationalists with no rights under the mining laws. DFG has argued that even if we do have a property interest in the mining claims, we do not have any property interest in the annual permits which California issues to dredgers. Therefore, DFG has argued that we should not be allowed any standing in the ongoing litigation.

I believe our attorneys have done an excellent job presenting our argument that since modified regulations will reduce or eliminate access to our mining properties, and the Administrative Procedures Act (APA) of California forbids DFG to modify our regulations without allowing us an opportunity to be heard, and the yearly permits directly affect how me may access our property, that we certainly do have a place in this litigation.

2) We have also submitted a motion for the judge to reject the Stipulation which has been submitted to the Court by DFG and the Karuks to end the litigation. You guys will recall that this Stipulation creates an injunction preventing DFG from issuing dredge permits for the Main Stem of the Salmon River, Elk Creek, Indian Creek and other waterways. The injunction also reduces the dredging season on the Klamath and Scott Rivers to 1 July through 15 September. These are very substantial changes in our suction dredge regulations. DFG began implementing them in November of 2005 without so much as a single notice to the mining community or the many other people that will be adversely affected.

In opposition to our motion, the Karuks have submitted a very substantial volume of material to the Court, including Declarations from three fish biologists. Most of the material presented basically rehashes the same old arguments about dredging up the fish eggs and swallowing up juvenile salmonids. There is no acknowledgement by the Karuks that existing regulations have already addressed these very same issues. They have not provided any factual information to show how existing regulations do not provide adequate protection for the Coho salmon, or any factual information to demonstrate that a single fish has ever been harmed by a suction dredger. The Karuk’s position is that suction dredging should be presumed to be harmful unless proven otherwise (How is it even possible to prove “no harm” from any human activity?).

DFG’s opposition to our motion is based upon an argument that since their Stipulated Agreement was created during ongoing litigation, they really have not made any changes to our regulations at all. Therefore, they argue that they are not bound by the provisions of APA and the California Environmental Protection Act (CEQA) which require public participation when regulations are changed, even under emergency conditions. Interestingly, DFG’s position also is that they have done everything right in the way they have managed the suction dredge regulations during the past, including affording adequate protection to the Coho salmon. They make no claims that existing regulations do not protect the Coho. Their position is that the Stipulated Agreement simply offers additional protection because of the unproven arguments brought forward by the Karuks in the litigation. DFG argues that it is well within the authority of the Court to Order an injunction that reduces our dredging seasons. Never mind that there has yet to be any contested hearing or public debate to determine if any additional protection is even necessary!

In turn, our attorneys have argued that no matter what kind of spin they want to put on it, the fact is that the written regulations presently being issued by DFG have been changed to reduce our dredging seasons. The changes are very substantial. The fact that DFG is arguing that the earlier regulations were already in compliance with CEQA and were providing adequate protection to fish does not go well with a decision to shorten our mining seasons. We have rebutted the Declarations written by Karuk biologists with Declarations from other biologists who actually have field experience along the waterways that are being fought over in this litigation. We have also presented a Declaration which outlines just how substantial these regulatory changes are and how much damage will be caused to Miners and others.

Our main argument is that the Administrative Process in California was enacted to mandate State Agencies (DFG) to allow all interested parties to participate, and to mandate that State agencies weigh and balance all of the relevant factors to create reasonable regulations that resolve perceived problems in such a manner as to impose the least amount of restrictions upon productive activity. We argue that it is wrong for the Court to allow DFG to skirt around its important obligations to the public by sneaking behind closed doors with anti-industry groups to impose more restrictive regulations by Court Order — even without so much as a contested hearing.

As the court hearing is postponed until 9 February, I gather that DFG and the Karuks will be allowed one more opportunity to rebut our arguments in writing to the Court. I assume there will also be some oral arguments during the hearing.

We should keep our hopes up that this goes our way. If it doesn’t, we are already in early planning for the appeal. What good is the full public administrative process if a State agency can later go behind closed doors with an anti-industry group and modify industry regulations without having to justify the changes to the industry or the affected public?

We are also in the beginning stages of organizing a class action lawsuit to force the State of California to compensate all affected mining claim and private property owners for the reduced value of our/their holdings. The State cannot have it both ways. If the Court agrees that it is so important to stop or reduce the mining activity on these properties for the public good, then the State should be prepared to financially compensate property owners for our losses.

We are also exploring the possibility of filing a counter claim against the State of California for allowing the Karuks to dip net and kill the very same fish that they are trying to protect from us. Our research to date appears to show that the Karuk’s fishing practices should not be allowed under the very same laws they are using to try and eliminate the miners. This is not about retaliation. There just comes a point where we have to be looking at all of the potential negative impacts upon these fish. If conditions are so critical that serious consideration is being given to eliminating or reducing our mining seasons, then why are the Karuks being allowed to kill as many of the fish as they want out of the river? Where is the CEQA document that supports that decision by the State? I gather that other industry groups in Siskiyou County, who are also being pressured to make substantial and costly concessions, are asking the very same question.

If you possibly can, please be present at the hearing in Alameda County on February 9th. It is important that Miners are present. I know it is a long way away from our territory. Still, we need to be there in force if we can.

Once more, I am asking for another $10 donation, from anyone who can afford it, to help support our legal fund. It is vital that we finish paying attorney fees for December before we receive the January billing. Although we are close, we have not accomplished that, yet.

You guys should know that I am experiencing more stress about paying our lawyers, than I am about the litigation. The lawyers are doing a great job. We are fighting this battle as well as it can be done. The rest is up to fate. It is a good feeling to know you have done everything that you can to solve a problem!

My concern is over our future capability to do the same thing. We must keep up with our attorney bills so that we do not get overwhelmed by the process. All I can do is yell the charge. You guys are the force which will allow our side to win this battle. Now is the time to charge forward!

Thank you for whatever you can do!

Sincerely,

Dave Mack

 

 
Dave Mack

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

(Forum Post, February, 11, 2006)

Hi Guys,

The judge’s Order granting Intervention status to miners in the litigation concerning our California dredging regulations was made final on 9 February. This allows us to participate in the ongoing litigation.

We have created a special page on our web site that includes explanations and the most important documents concerning this case.

The judge’s Order also ruled that since the miners are new Parties within the litigation, it would be improper for her to rule on an earlier motion to endorse the Stipulated Agreement between the Karuks and DFG to resolve the litigation. While she said that she would entertain a new motion about this, she made it clear that the Karuks and DFG would be required to prove that the Stipulated Agreement is just, is not contrary to public policy, and does not incorporate an erroneous rule of law.

We feel very strongly that the proposed Stipulated Agreement does not meet any of these requirements.

As we anticipate that the Karuks and DFG will motion the Court to accept their Agreement, our attorneys are already preparing for our response. We have begun by serving both the Karuks and DFG with formal Discovery demands. As you may recall, up until now, both DFG and the Karuks have refused to provide us with the biological data which supports their Agreement. Now that we are Parties to the litigation, it seems reasonable that they should be required to allow us access to the information which supports their positions.

DFG’s position in the litigation, by the way, is that pre-existing regulations have afforded adequate protection for the Coho salmon. So it is going to be interesting to establish how they are justifying a decision to reduce our dredging seasons. There was some dialog in the hearing last week that perhaps both the Karuks and DFG will try and block our Discovery demands. So we may have to go around with them in court just to get at the specific information they are using to justify their positions in this litigation.

As hard as it is to believe, DFG has taken the position that they ought to be able to reduce our seasons in a secret agreement with the Karuks without ever having to justify the reasons to anyone. What’s wrong with that picture?

There have been several questions and comments posted on the various forums about DFG telling dredgers on the phone that they intend to enforce the new regulations upon miners even if the judge in this case does not endorse the Stipulated Agreement. I suggest that people should not become too alarmed by these statements. The State does not hove the power to enforce regulations which have not been adopted pursuant to the California Administrative Procedures Act (APA) and California Environmental Quality Act (CEQA).

These regulatory changes certainly were not adopted pursuant to APA and CEQA. That is a big part of our objections in front of the Court.

In the present litigation, DFG’s position is that they can skirt around the provisions of CEQA by making a court settlement, even though they are arguing in court that they have already been affording adequate protections to fish without making a settlement agreement with the Karuks.

CEQA was implemented to prevent arbitrary and capricious actions from State officials, while providing reasonable protections for the environment.

We don’t really see how DFG can expect to have it both ways: (1) Argue that they have been protecting the fish just fine under the pre-existing regulations; and, (2) Argue that they have the right to reduce our dredging seasons to afford additional protection to settle the unproven allegations made by the Karuks.

No matter what story DFG is telling the public right now about what they plan to do, my best guess is that if the judge will not endorse the Stipulated Agreement, DFG will be forced to withdraw its regulatory changes as we see them today. Likely, they will have to begin a new CEQA process to address any perceived needs (if any) for changes to our regulations. Anything short of that would probably not hold up to our challenges in court.

Let’s just take things one step at a time. The first step was to gain Party status in the litigation. We have done that. The next step is to challenge any attempt to reduce our dredging seasons that does not follow the lawful process in California. We are working on that now. Then we will challenge any attempt by DFG to enforce regulations which have not been adopted pursuant to the laws. But I doubt the 3rd step will be necessary.

Meanwhile, since the dredging season is still a long way off, I suggest you guys hold off on buying a 2006 dredging permit in California until we see how all this is going to settle out. There is still plenty of time.

Hang tough, you guys. I believe the law is on our side on this one.

All the best,

Dave Mack

 

 
 
Dave Mack

Here is some information concerning the Final Rule adopted by the U.S. Forest Service concerning who, how and when it becomes necessary to submit a Notice of Intent or file an Operating Plan.”

 

By Dave McCracken, General Manager

6 December 2009

The State of California recently passed a law which has placed a statewide moratorium on suction dredging in California until the Department of Fish & Game (DFG) completes an updated Environmental Impact Report (EIR). This EIR process has already begun. Click here for more information.

The Environmental Impact Report (EIR) on suction dredging in California is being completed through a CEQA Process (California Environmental Quality Act); which, based upon best available science, requires the authorities to identify any important concerns (measured against some “baseline”). Then, those concerns must be addressed through implementation of regulations which are least-restrictive upon people and economic activity. This is not new to us, since we actively participated in the earlier EIR which was completed during 1994.

DFG began the public process on 26 October by circulating a 107-page Notice of Preparation (NOP). The NOP is mostly made up of an “Initial Study Suction Dredging Program,” which is also being referred to as the “Initial Scoping Document.” This formal review has basically identified every known potential negative impact which could be associated with suction dredging.

The Scoping Document has been sent around to all or most government agencies, environmental groups, mining interests and other known “stakeholders” who may have some interest in the progress and outcome of the EIR. Interested parties were provided an opportunity to comment on the Initial Scoping Document. The deadline for written comments passed on 3 December. This was the initial opportunity for us to make comments voicing our concerns about how the process is moving forward or any initial conclusions DFG has made that we believe are incorrect within the Scoping Document.

The New 49’ers submitted written comments expressing several areas of concern. We have created a special page on our web site so you can view our comments, and so you can follow along and participate in this important process as it moves forward.

One of our most important initial concerns is that within the Scoping Document, DFG says that they intend to use the existing moratorium (on suction dredging) to create a baseline of “no dredging activity” in order to gauge the importance of any potential impacts.

Everything leading up to this process (years of legal wrangling) resulted in several court decisions and Settlement Agreements whereby DFG pledged to perform the EIR specifically for the purpose of determining if existing suction dredging regulations have been providing adequate protection for fish. The moratorium has stopped existing dredging activity only until existing regulations are re-evaluated. More than 2,500 suction dredge permits were issued by California during our 2009 season. But DFG has decided to create a baseline in the EIR to evaluate all of the potential impacts against zero activity, choosing to completely ignore the existence of our $60million annual business! We have had a viable suction dredge industry in California for the past 30 years. Now DFG is going to try and evaluate future impacts against a baseline of zero?

Do you guys get the idea that the State of California is deliberately trying to kill off its own private business, or is it just me?

We felt this issue was so important, and because there are serious legal implications, we paid our attorneys to author comments on our behalf concerning this particular issue.

Another major problem in the Scoping Document was in the way DFG has projected volumes of streambed which are processed by suction dredgers. Basically, they took the volume capacities advertised by the dredge manufacturers and multiplied those by an average number of hours per day, multiplied by so many days per week, multiplied by the number of permits they sold in 2008. You guys get the idea? DFG thinks we just go down and suck up sediments which mostly just pass through a suction nozzle! They have no idea that we are taking apart compacted streambeds in which 85% of the material must be moved out of the excavation by hand (or by power winch in the case of large rocks) because it is too large to pass through the nozzle.

This is proof-positive that the people who are spending $1.5 million performing this Environmental Impact Report on suction dredging have no direct experience of their own with the activity! No wonder California is bankrupt!

Since projected volume capacities are what DFG will use to place a negative value upon the potential impacts from suction dredges, and their estimates are many magnitudes greater than what really happens in dredging, I personally devoted some substantial work into comments on this subject.

We also made comments on other very important issues. For example, the Scoping Document seems to indicate that DFG is going to completely ignore all of the biological discussions and conclusions which evolved from the EIR which we worked so hard to complete in 1994. So, contrary to their promises in Court, rather than take a hard look at the well-established, earlier biological conclusions to see if they are providing adequate protection for fish, it appears that DFG now intends to scrap all the earlier work and begin the entire biological discussion over again from scratch. Here are our initial comments about that.

On top of that, despite repeated formal Declarations to the courts and California legislature that they have new data which suggests harm to fish, we cannot find anything new in the Scoping Document. It looks to us like they just want to rework all the same old arguments, once again.

DFG concerns over mercury are the exception to my statement in the paragraph above. This all stems from a study which the State performed several years ago where they proved that a standard suction dredge recovered 98% of the mercury which they sucked up out of an established mercury hot spot (there were visible pools of mercury on the bedrock). Of course, little or no credit is given to the 98% clean-up rate. All of the attention is on the 2% loss of mercury in the tailings. This is not mercury the dredgers put into the stream, have you; the mercury was already in the stream. The State’s argument is that because the dredge sucked it up in the first place, it is a water quality violation to discard any mercury back into the waterway. Leave it to the State to decide that it is better to not remove 98% of the mercury which dredgers rarely encounter!

Environmentalists argue that because a suction dredge only recovered 98% of the mercury out of an established waste site, all suction dredging should be stopped across the entire state! We submitted comments on this from myself and also from some other specialists in this field.

We also felt it important to comment on the continuous misuse of the term “recreational” in relation to mineral exploration and mining activity. It is common for State officials to confuse small-scale gold exploration activities as just another recreation, no different than any other. Federal law provides every American the right to search for minerals on any level which you choose to – and to claim valuable deposits which you find on the public lands. Whether or not you are enjoying the activity has nothing to do with it. Even a total anti-mining activist has the right to claim a valuable deposit if he stumbles upon one. But he or she would argue that you don’t have the right simply because you are enjoying the activity? Give me a break!

I encourage you to take the time to read our comments if you can find the time.

We have done our best to set the record right. Now we will wait and see how seriously DFG will entertain our comments. The more seriously they treat them now, the less of a battle we will have later if they decide to just skip over them as unimportant.

The purpose of the CEQA process is to get at the truth. But we have seen time and time again (nearly every time) where truth and justice has not been part of the State process, so we will have to remain vigilant.

A draft EIR is the next step in the process. We can expect to see that during this next summer or fall (2010). That will be followed by another opportunity for public input. A final EIR is not expected until spring 2011 at the earliest.

Completing the Administrative process is the one thing that surely is going to get dredgers back in the California waterways. We are right on top of this.

 

 

By Dave McCracken

On June 6th, the U.S. Forest Service (USFS) published its Final Rule on Section 228.4 in the Federal Register. Section 228.4 is concerned with when it is necessary for a miner or prospector to submit a Notice of Intent (NOI) or Plan of Operation (PoO) with the USFS.

For around the past 30 years, Section 228.4 has said that miners or prospectors only have to provide notice to the USFS of our activities when impacts upon the surface resources might become significant.

As a result of the judge’s interpretation of this language in the recent landmark case of Lex & Waggener, last summer, the USFS implemented an Interim Rule with new guidelines for Section 228.4. Many of us within the industry objected to the Interim Rule, because it basically said that a NOI was required whenever a miner or prospector would potentially create any surface disturbance on National Forest land.

The USFS allowed a public comment period after publishing its Interim Rule, and they had at least one public scoping meeting, which took place in southern Oregon. That meeting was sponsored by the Waldo Miners in Cave Junction, Oregon.

The full version of the notice in the Federal Register condenses the thousands of individual comments which the USFS received concerning the Interim Rule into common categories, and addresses each type of comment with a response. These formal responses will become important later, in the event there are questions about what was intended by the Final Rule.

Michael J. Burnside, who was the U. S. Forest Service Assistant Director of Minerals and Geology Management in Washington DC from 2003 to 2005, has presented us with a substantial explanation about the history behind and development of the Final Rule.

For those of you who are taking an interest in the reasoning behind how the Final Rule was created, or what it means, I strongly suggest that you read through the entirety of the notice with an open mind. The rational behind the Final Rule is substantial, so I will not repeat it here. Rather, I will go into of the main points which I feel are important to small-scale miners:

1) Small-scale miners objected strenuously to the “any surface impact” concept of the Interim Rule, basically arguing that the USFS should not waste its limited resources processing NOI’s from miners that were not creating a significant disturbance on Forest Service land. We also argued that miners or prospectors should not be burdened with a requirement to notify the USFS of activities which do not create a significant impact on surface resources. As a result, the Final Rule returned to the “significant disturbance” concept.

Here follows a statement in the comment-section of the text on this subject:

Page 32729, left column: “If the operator reasonably concludes that proposed operations will not cause significant disturbance of NFS resources, the operator is not required to submit a notice of intent to operate.”

2) We also objected to the idea that miners or prospectors should be required to provide a NOI for any activity that may cause an impact upon Forest Service land that was similar to other users of the Forest that were not required to obtain any special-use authorization. Examples were given of the use of ATV’s, boats or rafts, camping and otherwise occupying the Forest while actively pursuing mineral exploration activities. As a result, the Final Rule specifically excludes from the NOI-requirement any prospecting activity which creates surface disturbances on par with other users of the forest who are not required to obtain special use authorization.

3) Within the comment-section of the notice, the USFS explains that they do not distinguish between commercial or, so-called, “recreational mining activity” or different types of mining clubs or groups. This position is consistent with our arguments that the mining law allows everyone equal rights to prospect on the public lands and lay claim to valuable minerals when they are discovered.

4) We complained that prospectors were having difficulty in some areas where the USFS was considering any prospecting activity a “significant impact;” even panning, metal detecting and non-motorized sluicing or dry-washing! As a result, the Final Rule specifically excludes these types of small-scale prospecting activities from the NOI requirement.

Here follows a statement in the comment-section of the text on this subject:

Page 32729, right column: “However, it is possible to identify some category of which will never require the prior submission of a notice of intent to operate, and the Department agrees the final rule should identify those categories with more specificity as suggested by the respondents.”

These are activities that are specifically excluded from the need to ever file a NOI. It means that under no circumstances do panners, non-motorized sluicers or electronic prospectors need to file an NOI; they do not have to make any contact with the USFS for these types of activities.

This is very good for the lower Salmon River area, by the way. Most of the activity going on down there two seasons ago involved the panning very rich pay-dirt located within the exposed bedrock cracks and irregularities along the edges of the river. Now, there is no question that small-scale prospecting and short-term camping along our mining claims do not require any NOI to the USFS in advance of the activity.

5) Any other mineral-related activity which is not likely to cause significant impact is excluded from the need to file a NOI. This is good for the industry. Naturally, whether this includes motorized sluicing (high-banking) or dredging will depend upon the situation surrounding the location where the activity tales place.

While such activity in most cases (according to my own judgment) would not create a “significant impact,” the USFS reasoned within the comment-section of the notice that there is the possibility of significant impact in some circumstances (such as when there is critical habitat present which supports a listed species), so they could not categorically exclude motorized mining from the NOI requirement. But they also did not specifically make a NOI a requirement of these activities. The Final Rule says that the miner or prospector should provide a NOI if he or she reasonably concludes that there may be a “significant impact.”

I should point out that within the Karuk litigation, the USFS has taken the position that they have no authority over mineral-related activity on Forest Service land that is not creating a significant surface disturbance.

Some people are already misinterpreting the Final Rule, assuming that motorized sluicing and dredging requires a NOI, because they are not specifically on the list of exclusions. However, a careful reading of the Rule says that any type of mining activities only require a NOI where there is likelihood of “significant disturbance.”

6) No penal provision has been added to Section 228.4. If I have this right, this means that the USFS cannot write a criminal citation to a miner or prospector who fails to provide the USFS with a NOI or Operating Plan. For more information on this subject, I suggest you read what the judge had to say in the recent McClure decision.

Some would argue that the USFS should not have the discretion to decide what is, and what is not, a “significant surface disturbance” concerning mineral-related activities on Forest Service land. There are also several sub-sets of arguments along these lines, such as whether or not the USFS even has authority to regulate mining activity within the high-water marks of western rivers in the first place, and what constitutes a “navigable river.”

These arguments have also been raised (but I doubt they will be resolved) within the Karuk litigation.

Until those issues are resolved to everyone’s satisfaction within a court of law, it is clear that the USFS believes it has the authority to regulate mineral activity which results in a significant impact upon surface resources, and they are moving forward with the presumption that they do. Therefore, they are taking responsibility to manage small-scale mining activity in accordance with this Final Rule.

Some would argue that miners and prospectors should be allowed to do whatever we want. As nice as that might be, I don’t think that argument is supported by controlling case law. The general mining law supports us a great deal. But not so much that we can turn our backs upon the rest of the world. According to its own interpretation, the USFS is charged with the responsibility of balancing use of the public lands at issue here.

The potential for problems do exist (as will always be the case) where there may be a difference in opinion between the USFS and a miner or prospector over what constitutes a “significant surface disturbance.” My own interpretation is that if such disagreements cannot be resolved between the USFS and the miner (especially in the wake of the recent McClure decision), if the USFS feels so strongly about it that they want to stop the miner from pursuing his or her mining activity, the USFS will be required to prove its position to a civil court (this is acknowledged within the comment-section of the notice).

So in essence, it appears the USFS has the authority to decide, but they must be prepared to prove their position in court before they can finally prevent the prospecting activity. This seems like a pretty reasonable balance to me!

The Karuks are suing to prevent the USFS from allowing any mining under a NOI. That case will be decided around the end of June, 2005. The Interim Rule required a NOI for almost any prospecting or mining activity. The Final Rule requires a NOI only for activity that will create a significant surface disturbance. As the USFS has determined that most of our small-scale mining activity does not create a “significant impact,” I would say that this Final Rule has been published at a good time for us.

While we can debate amongst ourselves how much better the Final Rule might have been if we wrote the final language ourselves, we should not ignore how much worse it would have been if the USFS decided to hold onto the language contained within the Interim Rule! Or they might have even come up with something worse than the Interim Rule!

I suggest we might want to acknowledge that the USFS did pretty well here to balance competing interests while continuing to encourage mineral development – which is their mandate from congress. We should be happy that there are officials within the USFS that take this mandate seriously!

I would suggest we move forward, continue to organize ourselves as we have been doing, pool our resources, and prepare to assist small-scale miners in those instances where we believe a local determination of “significant disturbance” is not reasonable. These are things to resolve in court. No amount of language in a Rule will prevent some disagreements from happening.

 

Dave's Gold

New 49’er Legal Fund-raiser!

There will be 25 prizes in all:

Grand Prize: 1-ounce of Gold!
Four ¼-ounce Prizes
Twenty 1-pennyweight prizes

Dave MackThis is gold which Dave Mack dredged from the Rogue River during the 2010 Season. Dave has authorized our office to automatically generate a ticket in your name for every $10 legal contribution 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. The drawing will take place at our weekly potluck in Happy Camp on 2 July, 2011.

Legal contributions can be arranged by calling (530) 493-2012, by mailing to The New 49’ers, P.O. Box 47, Happy Camp, CA 96039, or by clicking Here.

 

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

 

 

August 27, 2008

The Honorable Arnold Schwarzenegger
Governor, State of California
State Capitol Building
Sacramento, CA 95814

RE: Opposition to proposed language within AB 1789 to further-restrict suction dredge mining:

Dear Governor Schwarzenegger,

Last year, you vetoed AB 1032(Wolk); a bill that would have required the California Department of Fish and Game (DFG) to close rivers and waterways to suction dredge gold mining without having to follow the administrative process required by the California Environmental Quality Act (CEQA).

It has come to our attention that the proponents of AB1032 are now pushing anti-suction dredging language within Assembly Bill 1798. The language would further restrict or prohibit suction dredge mining on a wide number of waterways within California. The proponents of this trailer bill language are trying to make an end run to reverse your veto of AB 1032 by using the legislative and administrative process to eliminate this activity.

The Assembly and Senate propose to further-restrict or eliminate suction dredge mining until the Department of Fish & Game completes a new Environmental Impact Report (EIR). Because these permits are issued annually, and DFG’s last EIR process took several years to complete, this language would cause great harm to the Gold Suction Dredge Mining program in California, upon which 2,500 miners and their families and mining-related businesses depend, for at least several years; probably longer. In addition to the miners themselves, several rural counties, particularly Siskiyou County, would face significant hardship as a cornerstone of their recreation and resource-based economies is removed further harming the state’s economy at a time when gold prices are at an all time high of between $800.00 and $1000.00 an ounce.

We would like to point out that throughout all of the litigation and other attempts to kill suction dredge mining by anti-mining activists during the last few years, they have yet to show any proof that a single fish has ever been harmed by suction dredgers. This, while the very same people are promoting that the State must continue to issue fish-kill licenses to millions of fishermen! This is clearly a case where special interests are attempting to subvert the political process to eliminate an important part of California’s ongoing, rich heritage; gold mining.

We are asking you to please veto this trailer bill language and allow the continued issuing of Suction Dredge Permits while the required environmental review process is being conducted.

Thank you,

(Be sure to include your full name and address.)

Cc: Senator Dave Cogdill, Senate Republican Leader
Senator Don Perata, Senate President Pro Tem
Assemblymember Michael Villines, Assembly Republican Leader
Assemblymember Karen Bass, Speaker of the Assembly

 

American Gold Eagles

The New 49’er Fund-raiser!

There will be 15 prizes in all:
Grand Prize: 1-ounce American Gold Eagle
Four ¼-ounce American Gold Eagles
Ten 1/10th-ounce American Gold Eagles

Our office will automatically generate a ticket in your name for every $10 legal contribution we receive ($100 would generate 10 tickets, etc).

This drawing will take place at our offices in Happy Camp on Friday afternoon, 8 March 2013. You do not need to be a member of our organization to participate. You do not need to be present to win.  There is no limit to the size or frequency of your contributions, or to the number of prizes you can win.

Legal contributions can be arranged by calling (530) 493-2012, by mailing to The New 49’€™ers, P.O. Box 47, Happy Camp, CA 96039, or online by clicking Here.

Eagle

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

 

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