SB 670 Sample Letter

 Archive
Nov 232011
 

April, 3, 2009

The Honorable Patricia Wiggins
California State Senate
State Capitol, Room 4081
Sacramento, CA 95814

Re: OPPOSE SB 670; suction dredge equipment permits.

Dear Senator Wiggins:

This letter is to inform you of my opposition to your bill SB 670. Your bill seeks to shut down a legal activity that myself and my family is engaged in. Why are you doing this when you know that there is an Environmental Impact Review already in progress on this issue?

It seems that suction dredge gold mining has been under constant attack since the court ordered the environmental review to be undertaken to determine what effect, if any that suction dredge gold mining has upon salmon spawning habitat. The Governor vetoed a bill in 2007 which dealt with this very same issue. The proponents of that bill have continued to attack us and falsely blame us on the decline of the salmon in the Klamath River.

Suction dredge mining is already limited to a short season that keeps the miners out of the rivers while there remains any possibility that we could dig into salmon redds. There are numerous studies which show suction dredge gold mining causes no harm to fish when they are not spawning.

If passed, your bill will destroy a vibrant part of California history, ruin the economies of rural counties and deny citizens our property rights. The allure of this activity is the same as that which brought the 49ers to California during the Gold Rush. It is part of our heritage.

This is not an inexpensive hobby or avocation. I spend a lot of money on equipment, lodging and contribute to the economy of mostly rural California. The average small-scale dredger spends an estimated $3,000 or more per month when mining. Much of this money is spent in local, rural economies where mining is popular. Also, the tax revenues generated from expenditures such as fuel, groceries, camping, and mining supplies, means that rural counties and the State of California benefit as well.

An often overlooked fact about suction dredge mining is that many of us have federal mining claims. Your bill, if passed, would violate our private property rights and would result in a very significant “takings” liability against the state. There have been numerous Federal and state court cases which have upheld these federal property rights.

Sincerely,

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

cc: Governor Arnold Schwarzenegger
The Honorable Darrell Steinberg
The Honorable Dennis Hollingsworth
The New 49’™ers Prospecting Association

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Miners Rights Vindicated

 Karuk Tribe Lawsuit Against the U.S. Forest Service to Stop Mining
Nov 232011
 

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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SB 670 Talking Points

 Archive
Nov 232011
 

SB 670 (WIGGINS)

Dear Assembly Member:

or

Dear Governor Schwarzenegger:

Please vote no on SB 670 (Wiggins)

  • The EIR-update, ordered by the courts, and subsequently funded by the State, is now underway.

  • The Department of Fish & Game just issued a Decision stating that existing biological information does not justify imposition of Emergency Regulations upon suction dredgers.

  • Suction Dredge Mining has not caused the decline of the salmon population along the California Coast. None of the reports on the decline of the Salmon population issued blame upon suction dredge mining.

  • The 1994 EIR found that suction dredging under existing regulations provide positive impacts; among other things, creating additional salmon spawning habitat by loosening concretized river gravels. Salmon runs are on the upswing in the Klamath River.

  • There is no scientific evidence to support shutting down a legal and legitimate industry across the State of California before an update of the existing the EIR is completed, particularly when prior studies fail to demonstrate any link between local salmon populations and suction dredge mining.

  • Suction dredge mining is already limited in California to a short season that keeps the miners out of the rivers and streams when salmon redds are present (where the eggs are deposited). There is no suction dredging allowed when salmon are spawning. There is no suction dredging allowed on the Sacramento River, where salmon populations are presently in decline.

  • A moratorium on suction dredge gold mining in California will violate the private property rights of thousands of Californians who have federal mining claims along the rivers and streams, and will likely result in very significant “takings” liability against the State.

  • The average small scale dredge-miner spends thousands of dollars per month when mining. Much of this money is spent in local, rural economies like Siskiyou County where mining is popular. Tax revenues generated from expenditures such as fuel, groceries, camping, and mining supplies, means that rural counties and the State of California benefit as well.

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Last chance to kill Assembly Bill 1789

 Archive
Nov 232011
 
Dave Mack

“This is probably our last chance to kill a suction dredge moratorium in California!”

 

 

Dear Fellow Gold Prospector,

Assembly Bill 1789 (includes anti-suction dredge provisions) will be attached to the full California budget bill which will be voted upon by the California legislature sometime within the next few weeks.

target=”_blank”>Here is a short summary from Pete Conaty. Here is a letter to the California governor which our attorney has already written on our behalf. Here is a more complete explanation of our strategy on how to defeat this harmful attack upon our industry, and how you can help.

We need your immediate help in sending a letter, fax or email to Governor Arnold Schwarzenegger, asking him to please veto the harmful anti-dredging language included within AB 1789.

We must either kill this rider right now, or there is a good chance that suction dredging permits will be adversely affected in California next season!

Here is a ready-made message (email, fax or letter) in opposition to AB 1789. It is better if you just use this sample to write your own message. But if you do not have time to do that, please at least copy the text from our sample message over to create your own fax, letter or email to the Governor.

If you don’t know how to copy and paste material off the Internet, please click here.

To make certain your message actually makes it to the Governor’s desk and the other lawmakers, our lobbyists are asking that you direct them to one of the following addresses:

Pete Conaty & Associates
1107 9th Street, Suite 530
Sacramento, CA 95814

Or Fax your message to: (916) 492-8957

Or email your message to: pconaty@sbcglobal.net

Our lobbyists will make certain that your message is hand delivered to the Governor’s office and other key locations!

Important: Even though you send your message to our lobbyists, the heading of the message should be addressed to Governor Arnold Schwarzenegger as shown in our sample message.

This is probably our last chance; please help us kill this harmful legislation now!

Very important: You must include your own return postal address on whatever letter, fax or email that you send to the Governor. That is the only way that he can recognize and weigh the importance of your communication!

Thank you very much for your help in this very important matter!

Dave McCracken

 

The New 49’ers27 Davis Road, Happy Camp, CA 96039 (530) 493-2012

www.goldgold.com

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We killed Assembly Bill 1032!

 Archive
Nov 232011
 
Dave Mack

“We killed Assembly Bill 1032!”

Please make a donation to our Legal Fund.

I’m sure most of you have already heard that Governor Schwarzenegger has vetoed Assembly Bill 1032. This is a very big win for gold prospectors everywhere!

It was a very close race all the way to the finish line on this very harmful legislation; it could have gone either way at the last minute. Our lobbyist told me that the 1000+ emails and faxes that you guys (and gals) generated for our side during the last few days may have been what tipped the balance in our favor.

For those of you who responded to our Action Alerts, I thank you very much!

That’s another very big win for our side!

I will follow with a more detailed report (from our lobbyist) in the upcoming newsletter. Then we can put this business behind us and get on with some exciting gold prospecting activity!!

I hope you guys are following the gold prices; they are going up, up, up! Hooray for us!!

We just finished our most productive season ever in The New 49’ers, with plenty of golden adventure — a lot which has already been edited into exciting video segments. We will include those in upcoming newsletters.

For the moment, though, let’s all just breathe a sigh of relief and give ourselves some well-deserved pats on the backs for overcoming that awful legislation.

Whew; that was a close one!

Here follows Governor Schwarzenegger’s veto message:

To the Members of the California State Assembly:

I am returning Assembly Bill 1032 without my signature.

The purpose of this bill is to protect fish and wildlife from the potential deleterious effects of suction dredge mining. Although I appreciate the author’s intent and the need to protect our fish, wildlife, and water resources, this bill is unnecessary.

Current law gives the Department of Fish and Game (Department) the necessary authority to protect fish and wildlife resources from suction dredge mining. It has promulgated regulations and issues permits for this activity. Permits for suction dredge mining must ensure that these operations are not deleterious to fish and allow the Department to specify the type and size of equipment to be used. In its regulations, the Department may also designate specific waters or areas that are closed to dredging.

It is unclear why this bill specifically targets a number of specific waterways for closure or further restrictions. The listed waterways represent only a small fraction of the waters in our State where suction dredging is occurring. The benefit or protection from such a minor closure is negligible and supports the notion that scientific environmental review should precede such decisions.

Sincerely,

Arnold Schwarzenegger

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Dave’s Comment Letter to the State Water Resources Control Board- 06/2007

 Archive
Nov 232011
 
Dave Mack

“Here is my comment letter to the State Water Resources Control Board…”

 

State Water Resources Control Board
Division of Water Quality
P.O. Box 100 Sacramento, California 95812-0100
Fax: 916-341-5620 email: commentletters@waterboards.ca.gov

6 June 2007

Dear Sirs,

My name is Dave McCracken. I manage The New 49’ers Prospecting Organization in northern California, where our members have access to over 60 miles of mining claims along the Scott, Salmon and Klamath Rivers, and some of their creek tributaries in Siskiyou County. We have around 1,300 active members, some who use suction dredges under permit from the Department of Fish and Game (DFG).

As I have been actively managing this program for the past 23 years, I have had plenty of opportunity to observe the impact upon water quality from the effects of suction dredging. My personal observation has been when any visual impact can be seen at all, the impact is small and localized. This observation has been similarly reflected by numerous studies and published reports on this subject. For example, a report on the water quality cumulative effects of placer mining on the Chugach National Forest, Alaska found:

“The results from water quality sampling do not indicate any strong cumulative effects from multiple placer mining operations within the sampled drainages.” “Several suction dredges probably operated simultaneously on the same drainage, but did not affect water quality as evidenced by above and below water sample results. In the recreational mining area of Resurrection Creek, five and six dredges would be operating and not produce any water quality changes (Huber and Blanchet, 1992).

I was operating a 12-inch dredge under Special Permit along the Klamath River during the early 1990’s. As part of that Special Permit process, DFG biologists visited the area where I was dredging and conducted turbidity sampling above my dredge and around 200 feet below my dredge. They were not able to determine any increase in turbidity. Therefore, my Special Permit to operate the 12-inch dredge was approved for as long as I continued to apply for it. These observations were consistent with other published information on this subject:

Thomas (1985), using a dredge with a 2.5-inch diameter nozzle on Gold Creek, Montana, found that suspended sediment levels returned to ambient levels 100 feet below the dredge. Gold Creek is a relatively undisturbed third order stream with flows of 14 cubic feet per second. A turbidity tail from a 5-inch (12.7 cm) dredge on Clear Creek, California was observable for only 200 feet downstream. Water velocity at the site was about 1 foot per second (Lewis, 1962).


Turbidity below a 2.5 inch suction dredge in two Idaho streams was nearly undetectable even though fine sediment, less than 0.5 mm in diameter, made up 13 to 18 percent, by weight, of substrate in the two streams (Griffith and Andrews, 1981).


Hassler (1986) noted “…during dredging, suspended sediment and turbidity were high immediately below the dredge, but diminished rapidly within distance downstream.” He measured 20.5 NTU 4 meters below a 5-inch dredge that dropped off to 3.4 NTU 49 meters below the dredge. Turbidity from a 4-inch dredge dropped from 5.6 NTU 4 meters below to 2.9 NTU 49 meters below with 0.9 NTU above. He further noted “…water quality was impacted only during the actual operation of the dredge…since a full day of mining by most Canyon Creek operators included only 2 to 4 hours of dredge running time, water quality was impacted for a short time.” Also “…the water quality of Canyon Creek was very good and only affected by suction dredging near the dredge when it was operated.”

As I am sure that you aware, environmental interests have been trying to eliminate suction dredging from California’s waterways for a long time. During recent years, they have been making noise about the possibility that the localized increased turbidity behind some suction dredges may contribute to raising water temperatures in the overall waterway. With concern over this possibility, we hired two qualified fish biologists (both retired from the EPA) two years ago to perform water temperature testing upstream and downstream of active dredging operations along the Klamath River. They tested in numerous locations, and were not able to find any measurable increase in water temperature behind operating dredges. Although, in some cases, they did discover cooler water within the dredge holes, and cooler water within the discharges from the dredges which were sucking up the cooler water (probably ground water) from the dredge holes. Similar results were acknowledged by published material on this subject:

Dredge mining had little, if any, impact on water temperature (Hassler, T.J., W.L. Somer and G.R. Stern, 1986). In addition, the Oregon Siskiyou Dredge Study (SNF, 2001) states, “There is no evidence that suction dredging affects stream temperature.”

I was personally directly involved with the California Environmental Quality Act (CEQA) process during 1993 and 1994 (and again in 1997), when existing State-wide suction dredge regulations were adopted by California. I recall that the State Water Resources Control Board enacted a State-wide exemption at that time for persons operating suction dredges in conformance with Section 5653 suction dredge regulations. As I recall, this exemption was issued to simplify the permitting process for suction dredgers (many who visit from out of state and only suction dredge during a brief holiday or vacation), and also to not burden the State Water Resources Control Board or its Regional offices with applications from thousands of (very) small-scale gold miners who have a negligible impact, if any, upon water quality. This was somewhat reflected in the environmental Impact Statement (EIS) which was published by DFG at that time:

Suction dredging causes less than significant effects to water quality. (CDFG, 1997).

“Suction dredges, powered by internal combustion engines of various sizes, operate while floating on the surface of streams and rivers. As such, oil and gas may leak or spill onto the water’s surface. There have not been any observed or reported cases of harm to plant or wildlife as a result of oil or gas spills associated with suction dredging” (CDFG, 1997).

The impact of turbidities on water quality caused by suction dredging can vary considerably depending on many factors. Factors which appear to influence the degree and impact of turbidity include the amount and type of fines (fine sediment) in the substrate, the size and number of suction dredges relative to stream flow and reach of stream, and background turbidities (CDFG, 1997).

“Effects from elevated levels of turbidity and suspended sediment normally associated with suction dredging as regulated in the past in California appear to be less than significant with regard to impacts to fish and other river resources because of the level of turbidity created and the short distance downstream of a suction dredge where turbidity levels return to normal” (CDFG, 1997).

As far as I know, the most comprehensive study to date concerning how water quality is affected by suction dredging was contracted by the EPA to analyze of the effects on mining in the Fortymile River in Alaska. The report stated:

“This report describes the results of our research during 1997 and 1998 into the effects of commercial suction dredging on the water quality, habitat, and biota of the Fortymile River. The focus of our work on the Fortymile in 1997 was on an 8-inch suction dredge (Site 1), located on the mainstem At Site 1, dredge operation had no discernable effect on alkalinity, hardness, or specific conductance of water in the Fortymile. Of the factors we measured, the primary effects of suction dredging on water chemistry of the Fortymile River were increased turbidity, total filterable solids, and copper and zinc concentrations downstream of the dredge. These variables returned to upstream levels within 80-160 m downstream of the dredge. The results from this sampling revealed a relatively intense, but localized, decline in water clarity during the time the dredge was operating” (Prussian, A.M., T.V. Royer and G.W. Minshall, 1999).

“The data collected for this study help establish regional background geochemical values for the waters in the Fortymile River system. As seen in the chemical and turbidity data any variations in water quality due to the suction dredging activity fall within the natural variations in water quality” (Prussian, A.M., T.V. Royer and G.W. Minshall, 1999).

While I acknowledge that the possibility exists that a suction dredger could encounter an occasional patch of particularly-silty streambed, while dredging in a smaller-sized waterway, which could cause detectable increased turbidity levels some extended distance downstream, this would be a rare anomaly which seldom occurs. My guess is that our adversaries in the environmental community will grasp at these very rare occurrences to push their own agenda — which we all know has less to do with the health of fish, than it does about trying to rid America’s public lands of productive activity.

Nothing short of complete prohibition of all productive activity can guarantee that an occasional anomaly might not occur. This is true of any regulated activity. We would not want to see the Statewide exemption for suction dredgers un-renewed just because of the possibility of a rare anomaly. There are several reasons to pause and consider:

1) The occurrence of excess turbidity by suction dredgers is so rare, there is no evidence that we are aware of that even suggests that those rare occurrences have ever harmed a single fish or other aquatic species.

2) The burdensome and expensive requirement for suction dredgers to acquire a water quality permit would all but eliminate the activity in the State of California. DFG is already charging out-of-state visitors $167.25 for an annual suction dredge permit. That’s already a lot of money to spend on a permit for someone who is only going to visit for a few days or a week or two. I know, because I am in the business of trying to bring visitors to California. And I can tell you that many who would otherwise come here are already discouraged from coming because of the cost of the existing suction dredge permit.

Adding a burdensome water quality permit to the process will also discourage most Californians who presently enjoy the activity of suction dredging.

Gold prospecting has been a productive activity in California since before we were even a State. And while I acknowledge that some of the earlier practices were harmful to the environment, suction dredging today is carefully regulated by DFG and other agencies to ensure that the overall impacts do not create any measurable negative impact.

With this in mind, I encourage you to please weigh the negatives against the positives when you make a decision concerning a renewal of your state-wide exemption for suction dredgers. While I understand that economic consequences not your first concern, good leadership and responsibility to Californians require State agencies to take an honest look at the costs and benefits of the various policies which are being considered.

In this case, if you choose to not renew the state-wide water quality exemption for suction dredgers, I can nearly guarantee that you will eliminate an entire industry in this State; an industry which does a great deal to help support many rural communities; an industry that generates millions upon millions of dollars in income for California — and would continue to do so for the foreseeable future. We hope you will carefully consider what will be gained before you destroy our industry!

Thank you very much for considering my comments.

Sincerely,

Dave McCracken
General Manager, The New 49’ers

 

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Comments Needed for California State Water Resources Board- 06/2007

 Archive
Nov 232011
 
Dave Mack

“Your comments are needed!”

 

The California State Water Resources Board is requesting comments from the public regarding the effects of suction dredge mining on water quality. Based upon the comments, the Water Board will assess the available information to evaluate a possible further course of action. You can link to the Water Board’s Notice here.

This is a very important matter to the future of our industry. The outcome of this will either help or hurt gold dredgers in California!

We believe that some of the most productive input prospectors can provide to the Water Board are the conclusions from multiple studies which have already proven that suction dredge activity within existing California regulations does not create any significant negative impact upon water quality.

To help with this, a very qualified fish biologist has taken the time to compile for us many of the important conclusions into a report which you can copy from. Those conclusions can be found here.

The Water Board’s Notice requests comments to be sent by email to the following address: commentletters@waterboards.ca.gov Comments are being accepted until 12 PM on June 22. The subject line of your email should read, “Comment Letter – Suction Dredge Mining”

Please take a moment to send in your comments on behalf of suction dredgers. Because I can guarantee that our adversaries will be submitting material with the hope of shutting us down!

Please don’t copy all of the conclusions into your comments. It is better to just copy those sections which give support to the arguments which you personally want to make. It is good if you make your own arguments, and then copy over the citations which reinforce your position. This way, everyone is not just sending in the very same report!

Note: The citations which you want to copy are the ones that include the source of the information inside parenthesis. Here’s an example: Dredge mining had little, if any, impact on water temperature (Hassler, T.J., W.L. Somer and G.R. Stern, 1986).

The citations in the report will carry weight, because they originate from published results. If you don’t know how to copy and paste material off the Internet, please click here.

As an example, here is a copy of the comments which I personally sent in. They relay some of my own experiences concerning water quality, and they use some of the compiled citations to reinforce my view.

Important: You must include your name and address on your comments! Comments are generally not accepted by anonymous persons! Please keep your comments civilized, and please keep them focused upon the subject of how dredging affects water quality. That is the only thing they will consider in these comments!

The open hearing on this matter is scheduled for 10 AM on 12 June at the Resources Building, First Floor Auditorium, 1416 9th Street in Sacramento. Being there is not as important as sending in written comments, but it would be a good thing to have a big showing of support at the hearing if you can make it!

The main thing is to please draft some comments and send them in!

Thank you very much for your help in this matter!

Dave McCracken The New 49’ers

The New 49’ers27 Davis Road, Happy Camp, CA 96039 (530) 493-2012

www.goldgold.com

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Karuk’s Challenge to California Dredging Regulations 2

 Karuk's Challenge to California Dredging Regulations
Nov 232011
 
Dave Mack

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

Hello Everyone,

Here is a short update on the progress of the Karuk lawsuit against the California Department of Fish & Game (DFG):

We have now created a special page for this ongoing situation on our web site. The Karuk complaint against DFG is now up there. I’m sorry that the quality of our copy is not very good.

Under the New 49’er banner, our attorneys filed 2 briefs in the case this past Friday, 16 December. The primary brief is our Motion to Intervene in the litigation.

As I explained last week, we understood that DFG and the Karuks had already worked out a settlement to resolve this litigation — even though they refused to give us a copy.

There was a hearing scheduled this Tuesday (20 December) whereby I believe the plan was to try and get Judge Sabraw to formally endorse the settlement and thereby end the litigation. Our attorneys were present at the hearing pressing for our right to become involved, since it is actually our mining rights on the table. They also pressed the judge to not endorse the settlement between DFG and the Karuks.

Because of our pending Motion to Intervene, Judge Sabraw chose to not adopt the proposed settlement. Instead, she scheduled January 26, 2006 to hear our Intervention Motion and also to hold a hearing on the proposed settlement/joint stipulation for entry of judgment. We have until January 10, 2006 to file an Opposition to the Settlement. Our attorneys are already working on it.

We got in by the skin of out teeth on this one, you guys; just made it! Incredible how fast we organized to get competent attorneys representing our interests in this situation! We should acknowledge ourselves for doing good so far in this. But it is not over yet!

Please keep thinking up ideas on legal fund-raising, because we are running up a pretty big tab!! We don’t have any other choice!

I hope to post a copy of the Settlement Agreement between DFG and the Karuks real soon. I’m still waiting to receive a copy.

Thanks a lot for being there you guys!!

Keep your chins up,

Dave Mack

 

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Karuk’s Challenge to California Dredging Regulations 3

 Karuk's Challenge to California Dredging Regulations
Nov 232011
 
Dave Mack

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

Hello everyone,

This past week was a busy one concerning the Karuk litigation against the Department of Fish & Game (DFG).

On very short notice, we got the word out last weekend that the Siskiyou County Supervisors would vote Tuesday morning (3 January) on a Resolution speaking out against the way DFG and the Karuks have settled the litigation behind closed doors (deciding upon further restrictions to prospectors). Timing required the Resolution to be taken up without delay; so that if it were passed, the Resolution could be included within the court filings that we will submit this next week. We feel it strengthens our position to have a County government providing the Court with a formal condemnation of this solution that the Karuks and DFG have come up with.

I was impressed and relieved that so many prospectors turned up for the Supervisor’s meeting in Yreka on Tuesday, and I’m sure the Supervisors were also impressed. Some came from hundreds of miles away. Quite a few prospectors from Oregon came down to give us support. As a result, the Supervisor’s hearing room was packed, with prospectors trailing out into the hallway.

Ultimately, the Supervisors unanimously passed a Resolution demanding that DFG follow the correct due-process in making any changes to the suction dredge regulations. They authorized Marcia Armstrong, who is the Chair-person for the Supervisors, to encourage the Superior Court Judge (in the litigation) to not endorse the Settlement Agreement between the Karuk’s and DFG and Order DFG to follow the public process as it is supposed to do. The Resolution also authorized Ms. Armstrong to contact our State Lawmakers and the Governor to request their assistance in getting DFG to follow due process.

From the Supervisor’s meeting, 49’er Mike and I spent two long days traveling to and from Sacramento to meet with one of the attorneys that is representing DFG in the ongoing litigation. Through earlier discussion with our own attorneys, DFG had agreed to allow us access to the documents concerning suction dredging, other than what they consider as privileged and exempt from discovery.

When we arrived at the Resources Department in Sacramento, they had already arranged a room where Mike and I could review the documents, and we were met by around 10 full file boxes of material. Big job!! Mike started at one end, I started at the other, and we met somewhere in the middle. We ended up taking copies of just under 500 pages. This was all copied again for our own files, and then we forwarded everything we received over to our attorneys.

While doing discovery in Sacramento, we were shocked in two ways:

1) The attorney representing DFG told us that the new restrictions to suction dredging are not being adopted pursuant to any of the emergency provisions contained within the California Environmental Quality Act (CEQA) (which would require some formal biological justification). He told us that the regulatory changes are simply being adopted pursuant to a Stipulated Agreement with the Karuk Tribe of California in the ongoing litigation. Just that; nothing more! In other words, DFG believes it has the authority to completely shortcut the full CEQA process by changing our regulations behind closed doors in a quiet settlement with the Karuks. Wow!!

We should all start asking ourselves why anyone should bother going through the whole public process in the first place, if a State agency can simply trade it all off behind closed doors with an extremist group that files a lawsuit?

2) Then the attorney representing DFG told Mike and I that because of the ongoing litigation, most recent documents concerning suction dredging in the DFG files would be withheld from our view under some kind of expanded attorney-client privilege. Therefore, they are refusing to make any of the biological information available to us that supports the reasons why they have restricted dredging seasons or eliminated the activity altogether on some waterways!

Can you believe that?

The California Environmental Quality Act (CEQA) and the California Administrative Procedures Act (APA) require State agencies to adopt or modify regulations through a fair and open process, whereby everyone who is interested in the outcome may participate in the process, and whereby the agency is required by law to carefully consider all relevant material brought forward by the public and finally adopt regulations which resolve perceived problems in such a manner that creates the least amount of difficulty upon those persons who will be affected by the regulations. The process is especially designed to prevent extremist groups from hijacking the system. The documents in the DFG files clearly show the CEQA process was followed when our suction dredge regulations were adopted in 1994. The extremist groups were present. But their concerns were weighed against ours, and final decisions were based upon science which was available for everyone to see.

For lack of being able to come up with a more accurate characterization, I am referring to this present situation as a reverse-CEQA. Here, we have DFG and the Karuk Tribe secretly going behind closed doors and working out how they are going to modify our suction dredge regulations. And now, they are refusing to give us any of the biological information (if it even exists) that they have used to justify the modifications! This is exactly what CEQA was meant to prevent; a case where an extremist group has completely hijacked the system!

Our attorneys are working on it. Our briefing papers to the Court are due in on this upcoming Tuesday (10 January). Then I suspect both DFG and the Karuks will respond with their own briefs. Then we will probably reply.

It is going to be interesting to see how both the Karuks and DFG will try to convince the Court that the miners have no right to intervene in the litigation. Stay tuned, because we will be posting the briefs as soon as we have them!

Meanwhile, once again, I am putting out a request for legal donations. To date, we have brought in around $3,000 since this thing started. I want to express my sincere thanks to everyone who has contributed!

The bills for December legal work will be arriving at any time. My guess is that we will need to raise more money just to pay those. Our attorneys did a lot of work for us last month! This month’s work by our attorneys is really going to run the costs up, because of the exchange of briefs just starting this week, and because of the Court hearing on the 26th.

You guys know that gulping feeling you get when you are spending more money than you have? That’s the way I am starting to feel!

The law is on our side in this matter. Winning is mainly going to be about raising money to pay the specialists on our side to make good presentations to the persons who will ultimately decide the outcome.

You know, if we could just get a $10 donation from every person signed up on this forum, we would be in great shape at the moment!

Thanks for whatever you can do.

Dave Mack

 

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Karuk’s Challenge to California Dredging Regulations 4

 Karuk's Challenge to California Dredging Regulations
Nov 232011
 
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

 

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