FIRST QUARTER, January 2006 VOLUME 20, NUMBER 1

By Dave McCracken General Manager

 
At just about the same time that the Karuks lost their lawsuit in Federal Court last spring (suit to stop in-stream mining within the Klamath National Forest), they quietly filed another lawsuit against the California Department of Fish and Game (DFG) to stop in-stream mining within the Klamath National Forest.

The reason we only recently found out about the pending litigation in California, is that the Karuk’s chose to file their lawsuit down in Alameda County, far distant from the specific areas of mining they are attempting to shut down within Siskiyou County. According to DFG, it is not their policy to inform the communities which could be negatively impacted by ongoing litigation, even when settlement agreements might affect those communities. So the mining community was never notified of the ongoing litigation!

More recently, DFG and the Karuks came to a Settlement Agreement within the litigation. As a result, DFG has already begun to implement modified dredge regulations as they apply to the waterways within the Klamath National Forest for the 2006 dredging season.

According to the modified regulations which are now being sent out by DFG, the Klamath, Scott and upper Salmon rivers have been reduced to a dredging season between 1 July through 15 September, and all dredging has been eliminated along the lower Salmon River, Indian Creek, Elk Creek, and other waterways. The notice can be found at the beginning of the DFG suction dredge regulations, a copy which can either be obtained from the DFG, or by visiting their web site.

All of this took place without a single notice to the thousands of people that will be negatively impacted by these changes!

Prior to these changes, the existing DFG dredging regulations have been supported by a full Environmental Impact Statement (EIS) that was completed during the mid-1990’s. The entire EIR process played out over the course of several years, with representatives from the mining community, environmentalists, organized rafting groups, County governments, State lawmakers and many, many others taking an active roll in the process. The California Administrative Procedures Act (APA) and California Environmental Quality Act (CEQA) each require State agencies to follow a very structured public process before it may adopt or change any regulations that could have a negative consequence upon communities within the State.

Through the course of this litigation, we are now going to find out if California law allows a State Agency to set aside all of the work that has been accomplished through a public process like this, and just give it all away to extremists in a (behind closed doors) court settlement – without so much as a single word to the thousands of people who will lose property rights.

As this negative situation directly impacts upon the rights of our members, and we are already in litigation with the Karuk Tribe, we have agreed with other leaders within the greater mining community that The New 49’ers will take the lead in fighting these modified dredge regulations that have just been issued by DFG.

We have already retained James Buchal and some of his associates to represent us. James was the lead attorney who helped us defeat the Karuks earlier this year in the federal litigation. He also helped small-scale miners in Southern Oregon defeat similar litigation by the very same extremists just within the past few months.

The good news is that our attorneys immediately contacted the Alameda Superior Court where this litigation is pending, and the Settlement Agreement (which DFG is already implementing) has not yet been signed by the judge! Immediately upon finding out about this very negative situation, our attorneys alerted the judge in this case (Judge Sabraw) that miners would be negatively impacted and wish to be heard before any Judgment or Settlement is made final.

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

Because of our pending Motion to Intervene, in a hearing on 20 December, Judge Sabraw decided to not adopt the proposed Settlement Agreement between DFG and the Karuks (yet). Instead, she scheduled January 26, 2006 to hear our Intervention Motion and also to hold a hearing on the Settlement Agreement between DFG and the Karuks. We have until January 10, 2006 to file an Opposition to the Settlement. Our attorneys are already working on it.

Actually, DFG’s formal Answer to the Karuk’s Complaint in the litigation says that they have done nothing wrong in the way they have managed the suction dredge regulations. They deny all of the Karuk allegations. DFG also denies all of the allegations in the Stipulated Agreement, but acknowledges that the Settlement is easier and less expensive than going forward with the litigation. They have even agreed to pay the Karuk’s legal expenses!

So, basically, to save itself from the discomfort of pursuing a defense on its own behalf (which is what the California Attorney General is supposed to do), DFG has sold out the rights of miners and agreed to pay money to extremists!

What country is this?

I do not believe that DFG possesses the authority to impose further restrictions upon suction dredgers without going through the full APA process, unless they can demonstrate that emergency changes to the regulations are justified by presenting conclusive evidence of harm to a protected species.

All the Karuks ever presented in the federal litigation were generalities. No specifics.

Generalities won’t do!

I also do not believe that DFG possesses the authority to negotiate our mining rights away in a court settlement behind closed doors just to save itself from litigating over the way it does things!

As long as the judge in the existing litigation will hear us, we will be pushing to set aside any changes to the pre-existing dredge regulations until DFG can demonstrate that an actual emergency does exist and can support the concern with specific information.

Remember that we hired several expert fish biologists to perform a study on the effects of suction dredging this past season? I think we are going to be glad we did that!

If it is too late for us to be heard in the existing litigation, we will be forced to file a lawsuit of our own against DFG for violating the Administrative Procedures Act and the California Environmental Quality Act. Both of these important laws require DFG to include us in any process that will affect our business. We have not been included!

I hope you guys agree with me in this plan, because it is going to cost money that we do not have in the bank, yet.

Fortunately, many of us stepped up to the plate and we were able to pay off all our earlier legal expenses within a short period of time. I am

very thankful for that, because now we have earned some credibility with the specialists who give us support when we need it. It was because of that credit that we have been able to react so quickly in this case. We have our foot in the door because the settlement agreement between DFG and the Karuks has not yet been signed off by the judge.

By the way, we also have found out that the Karuks do not have any federally-recognized fishing rights. Yet DFG apparently has a policy of allowing them to net salmon out of the river all they want, without any kind of fishing license. The Karuk’s are netting Salmon out of the river and killing them at the very same time the COHO salmon they wish to protect is migrating upstream to lay its eggs. So while DFG has made a settlement behind closed doors to curtail the suction dredging activity (there is not a single recorded case of a dredger ever harming a COHO salmon), they continue a policy of allowing Karuks to net out as many salmon as the want — even though it is directly against the law!

For our part, winning this battle is mostly going to be about raising money to pay the specialists on our side. So, once again, I am putting out the call for everyone interested in the outcome of this to please immediately send a $10 donation to: The New 49’ers Legal Fund P.O. Box 47, Happy Camp, CA 96039. Donations can also be made by Pay Pal on our Forum Site.

We have created a special page for this ongoing litigation on our website. All of the key Court documents are there in the event that you want to inspect them.

After we defeated the Karuk’s in federal court, we expected that we would soon face a challenge in State Court. But we are surprised to find out that it has been ongoing since May!

The Karuks are entirely based in Siskiyou County. All of the waterways they seek to close to suction dredging are in Siskiyou County. But they filed their lawsuit way down south in the Alameda Superior Court! How underhanded can you get?

It is 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!

The reason we won in the federal litigation is that so many members contributed financially so we could pay good attorneys to represent us. The result of that litigation has put us in the best shape ever at the federal level. This new situation allows us an opportunity to do the very same thing at the State level.

We really have to win this one! I hope you guys will help.

Planning for 2006 Season

With your help, I believe that we have a reasonable chance of persuading DFG to withdraw its modified suction dredge regulations before springtime. In addition to the legal action we are presently pursuing, we may also need help from the members in requesting assistance from various State lawmakers and Governor Arnold Schwarzenegger. Please watch closely for what we have to say about this next month.

Meanwhile, I suggest it is important for members to at least plan your summer prospecting activities around the times and places that are not affected by DFG’s amended dredge regulations: The following times, places, activities and events are not affected:

Special Week-long Above-water Group Mining Project: June 17 through June 23

Dave McCracken

General Manager