FIRST QUARTER, FEBRUARY 2009 VOLUME 23, NUMBER 2

For those of you who have not heard, I am pleased to inform you that the California Department of Fish & Game (DFG) denied a Petition for Emergency Rule-making made by the Karuk Tribe and its allies to impose increased suction dredge restrictions and some closures upon our industry. The restrictions basically would have imposed Assembly Bill 1032, which is the anti-suction dredging litigation that Governor Schwarzenegger vetoed two years ago. According to the Director of DFG, the Petition was denied “because there is not substantial evidence to support a finding that an emergency exists as a matter of law.”

Our lobbyists and attorneys invested a substantial amount of effort to overcome the Petition and I believe our success was largely helped along by a unanimous decision by the Siskiyou County Supervisors to hand-deliver a strongly-worded Resolution and formal letter to the Director of DFG and Governor Schwarzenegger that opposed any imposition of Emergency Regulations upon our industry. We have James Foley largely to thank for this effort, along with our own Siskiyou Supervisor, Marcia Armstrong, and Ric Costales, who is the Natural Resource Policy Specialist for Siskiyou County.

I also want to thank all of you out there who made generous contributions in support of our legal fund, which we rely upon to pay our attorneys, lobbyists and the other specialists who are helping us to keep overcoming these dangerous challenges to our industry.

Once again, we have proven that when we all stand united to defend our important property rights, we are able to defeat the efforts of extremists who are working so hard to take them away from us!

New Lawsuit Against Suction Dredgers Has Already Been Filed!

Exactly one week after DFG denied the Karuk’s Petition for Emergency Regulations, they filed yet another lawsuit in Alameda Superior Court (February 5), asking the Court to prevent DFG from administrating a suction dredge permitting program in California until a full review is completed of the Environmental Impact Report (EIR) which is the foundation of our existing regulations. The Complaint was actually filed by three individual “tax payers” who are affiliated with the Karuk Tribe. Here is a link to the complaint. The Complaint seeks an injunction from the Court to prevent the State of California from using general fund money to operate a suction dredging program, which they allege, is causing harm to fish in violation of Section 5653 of the Fish & Game Code.

More than likely, this lawsuit will be joined with pre-existing litigation in Alameda Superior Court in which the Karuks have already been challenging DFG”s management of suction dredge mining in California. In that case, all of the parties Settled upon an Order which required DFG to perform a review of the EIR and modify our regulations as necessary to protect (if any) fish that could be harmed by our activity. That Order was issued on 20 December 2006, allowing DFG 18 months to complete the review. While the money has finally been allocated by the State to complete the review, DFG has failed to meet the 18 month deadline which was set by the Court.

We are informed that the Karuks and other environmental organizations will seek to Intervene in this litigation. It will also be necessary for us to Intervene, since nobody else is going to be looking after American small-scale mining rights, even though that’s really what this battle is over.

This is one that our attorneys will need to fight for us. And since they are far more experienced in matters of law than I am, we nearly always defer to their best judgment on how to proceed on these matters. Having said that, here are just a few of my own thoughts:

1) Asking the Court to shut suction dredge miners down because the State has failed to prove “no harm,” would basically be the same thing as asking the Court to prevent all privately-owned farms in California from growing crops on their land because the State has failed to prove “no harm.”

2) We will strenuously object to being classed as “recreationalists or “hobbyists,” as the Karuks persist in trying to identify us. We are actually gold prospectors operating under the federal mining law, which does not distinguish part time prospectors or eliminate Americans who are enjoying the activity. Federal law clearly encourages mineral prospecting and development as the most productive use of most public lands.

3) I personally believe we should make it very clear that we are not mining gold on our properties by permission from the State of California. We are doing it under a vested right which is granted by an act of Congress.

4) My personal view is that while the wording in Section 5653 of the Fish & Game Code appears to create a required permission from the State, the State never had any jurisdiction to assume such authority to grant or withhold permission for miners to prospect for minerals on public or private lands and/or develop minerals on our own federal mining claims — especially under some impossible standard that the miners must first prove (to anti-mining extremists) no harm to fish.

5) It seems a good time to point out that the legality of California Section 5653 is questionable from the beginning (especially under the interpretation being used by our adversaries); in that we have a federal right to mine our claims which even the federal government cannot take away. From my own viewpoint, at most, the State might have some authority to request some mitigation in the event that they can prove important harm; something which remains their burden (rather than ours) to do in the first place. By mitigation, I mean in terms of reducing serious harm as much as is practical while still allowing the activity. This would be in line with federal mandates. It is also exactly what the California Environmental Quality Act (CEQA) requires.

6) Here is an argument that is ripe (good timing to make) in view of California’s serious budget problems: The State does not have the authority to shut down mining simply because the State does not have enough money to regulate the activity. If they are broke, they will just have to step back and allow legal commerce to move along. Americans have a fundamental right to make a living. This is a fundamental constitutional argument that liberty cannot be taken away from Americans just because the State does not have enough money to study every bug in a river which might or might not be affected.

7) I think we should point out that the anti-mining interests keep making the fatal mistake of confusing miners with others who are present on the public lands. Federal mining law grants us a vested right to be there, which no others (except the few who own private property) possess. The State has no authority to remove us as they are able to do with others that do not possess a property right. They keep forgetting that, and our adversaries refuse to acknowledge the right, even though the Supreme Court and 9th Circuit has continued to do so.

8) Furthermore, the argument/interpretation that Section 5653 requires the State to prove “no harm” before they may allow suction dredging is ludicrous coming from a commercial fisherman and representatives of an Indian tribe, each of the Complainants (in this latest lawsuit) who are in the business of strictly harming fish (killing them), neither class of Complainant who has any vested right in law to harm fish under any conditions. They are only being granted a privilege to kill fish by the State government.

9) Even if we did kill some fish (which we do not), I believe that federal law provides our right to kill some as a result of our mining activity as superior to the privileges which the State is granting to the Karuk Tribe and recreational or commercial fishermen. If cutbacks on “harm” are needed, it must first be the Karuks who feel the pain. The Complainants argument that miners must be eliminated so they can continue to kill fish is actually an argument which we should be using against them; which, as outlined below, we are getting ready to do.

10) Any standard of “no harm” that Complainants want imposed upon suction dredgers must be evaluated in light of the State’s decisions to allow millions of recreational fisherman to actually kill fish, and commercial fisherman and foreign fleets of commercial fishing vessels off our shores to kill huge allotments of fish for commercial gain.

How can the State impose a “zero harm” standard upon miners who have a vested right to work our mining claims, while they continue to sell fish-kill licenses to millions of others who have no similar vested right? There is a strong discrimination argument here.

11) Furthermore, Complainant’s theory for relief goes against basic economic policy, in that eliminating even more productive economic activity in a serious (and likely getting worse) recession is not going to help California’s budget crises. There are many rural communities that rely mainly upon the income they receive from suction gold dredgers who are actively exploring the public lands for rich new gold discoveries, and who are actively developing gold deposits which have already been found. Gold mining was one of the first important economic activities which helped California become a state in the first place, and it has been continuing ever since. With gold prices edging higher and higher, the last thing California wants to do right now is eliminate gold mining, especially since Complainants have yet to demonstrate that the activity has ever harmed a single fish!

I am sure our attorneys will have their own arguments somewhat in concert with these concepts. They always do a wonderful job presenting our side. As of now, I don’t believe a first hearing date in the new litigation has been set. I will keep you informed of events as they happen.

Meanwhile, I strongly suggest if you intend to dredge in California this year, that you don’t delay in sending in your application for a dredge permit! Even if the Court were to enjoin the Department from issuing further permits, those already holding permits would be on strong grounds to continue mining even if the Department can no longer expend general funds to further regulate suction dredge mining.

Suction dredge permit applications are available from our office. Just call the girls at 530 493-2012. They will also send you a sample of how you might like to fill out the application.

New 49’ers and Others Will File a Petition Challenging Special Fishing Privileges Being Allowed to the Karuk Tribe

As best we can tell, the Karuks do not even have federally-recognized fishing rights! They do not even have a reservation! Yet, their entire war cry is that miners, farmers, ranchers, hydro-electric facilities and other modern infrastructure which creates a

productive economy are undermining their eternal right to fish the salmon out of the Klamath River; something they don’t have a legal right to do in the first place under existing rule of law.

The State allows them a “special privilege” to dip-net all the salmon they want to take; something that is not supported by any CEQA (California Environmental Quality Act) foundation! So while they are suing the State of California because DFG has not updated the 1994 CEQA document which fully supports suction dredging, an activity which has never killed a single fish, the State of California allows the Karuk Tribe to kill as many fish as they like without any environmental oversight whatsoever! This could never hold up in any reasonable court of law; especially in federal court!

Talking about arbitrary and capricious management by a State agency!

The Karuks and their allies continue to bring endless litigation against State and federal government agencies to force unreasonable and fatal regulations upon miners, farmers, ranchers, the timber-harvest community, hydro-electric generation and other productive enterprises. These are the very activities which maintain the viable economies that our families depend upon. These are traditional wealth-producing enterprises which Americans have developed as a way of life. Until recently, we believed the litigation would come to an end once we won the ongoing lawsuits. But now it is becoming clear that these adversaries will keep coming at us at least until we start fighting back, allowing them to experience some pain, as well.

Karuk standing to sue in most of this litigation relies largely upon their: (1) federal recognition as an Indian Tribe, and; (2) their perceived “right” to continue dip-netting (killing) fish for their own consumption.

For quite some time, our attorneys have been advising that we do have an opportunity to challenge California Fish & Game’s decision to allow the Karuk’s a “special right” to use dip-nets to harvest fish on the Klamath River. I gather that there may also be some problems (which can also be challenged) with the status of their federal recognition as a tribe.

In light of the unending attacks against us and the other productive enterprises within Siskiyou County, and because of continuous encouragement from our supporters and others, I authorized our attorneys to draft a Petition to challenge any “right” which the Karuk Tribe possesses to kill fish on the Klamath River. The Petition is now in its final form, and several activists are soliciting co-sponsorship from other mining organizations and other organizations that represent natural resource development which is being continuously attacked by the Karuks and/or their allies. There is a substantial amount of enthusiasm building over this and we have already signed numerous organizations that wish to endorse the Petition.

We intend to file the Petition near the end of February.

The reason we waited so long to do this is that I personally am reluctant to challenge the fishing rights of an Indian tribe. Especially, since our problems are not really with the tribal members individually, but with just a few Karuk representatives who have taken over the leadership of the Tribe (to the objection of many or most of the members) and are making Karuk tribal status available to well-funded environmental extremist organizations mainly for the purpose of undermining the viable economies of rural America and particularly Siskiyou County.

Since the attacks upon us seem to be without end, we will now begin to fight back. We will begin by challenging Karuk Fishing “rights.” Our Petition basically challenges California DFG on two arguments: First, that since the Karuks have no recognized federal fishing right in the first place, the State Constitution prevents DFG from extending any “special” right upon the Karuks that all other citizens may not also enjoy.

Our second argument basically mirrors many of the arguments which the Karuks have used against us and other productive enterprises. The Karuks are actually out there deliberately killing fish without any environmental oversight whatsoever! How can the State of California continue to use its environmental laws to regulate all productive activity out of business (activities which they cannot prove that are even harming fish), while they completely turn their backs upon the activities of the Karuk Tribe that is out there killing as many fish as they can pack off the river?

It looks to me like the Petition is likely to be granted (stop Karuk dip-net fishing). If DFG denies our Petition, then we will have some really good arguments to make within the other ongoing litigation. We will also have a good Complaint against California DFG in federal court.

I will post the final Petition for all to see once we file it with the State of California.

Many of our supporters will be glad to hear that we are finally fighting back. I am personally saddened by the development. This is because most of the tribal people we will stop from dip-net fishing are not our enemies. Very likely, the few Karuk leaders who are waging war against us don’t ever do any fishing for themselves. They actually don’t represent the average tribal members very well. For example, our main adversary within the Karuk Tribe is presently being prosecuted for breaking a beer bottle over his wife’s head and running away, leaving her unconscious on the ground in the Klamath National Forest. This gives you an idea of who we are really up against!

Still, if there actually is a serious problem with salmon, it is likely that unregulated wholesale slaughter of fish by the Karuk Tribe is causing more harm than all of the other productive activities combined that they are working so hard to put out of business. So we have little choice but to move forward as planned.

Please Continue to Support our Legal Fund!

Our main task is to raise money to pay our warriors (attorneys) to do battle for us.

I want to thank all of you who responded to my call for help in January. Your help has pretty-much allowed us to stay even with the increased costs associated with all this additional legal and political activity. Paying the bills on time helps keep me from getting all stressed out. I’m sure you guys all know what I mean.

Because our need to raise funds is immediate, once again, we have our ever-vigilant member, Jim Yerby, to thank for organizing yet another set of very valuable prizes for a prize drawing – which is already in progress. In addition to 53 very nice prizes which have been donated by others, we also are expressing a big thank you to Jeff Kuykendal at Proline for donating a brand new 3-inch Proline dredge (worth $2,500.00) as our main prize, and to Louie Welding for donating a 2 ½-inch dredge/high-banker combo!

Here is a link to the list of prizes in this latest fundraiser.

If anyone would like to contribute a prize towards our legal and political fundraising, please contact Jim at . What do you have that might be a good prize in our fund-raising?

The contributors of these prizes have authorized the girls in our office to print a ticket on your behalf for each $10 contribution that we receive from you ($100 contribution will generate10 tickets, etc.). This prize drawing will take place on 4 July, 2009. There is no limit to the number of tickets you can accumulate, or the number of prizes that you can win in this drawing.

Important note: While these prize drawings certainly do make it more interesting, I cannot overstate the importance of supporting our need to pay for important political and legal action right now. This is more important than winning prizes. It is about defending our right to continue prospecting for gold on the public lands of America. It is about preventing our adversaries from underhandedly cheating us out of our mining rights!

Please send financial contributions to: The New 49’ers Legal Fund, P.O. Box 47, Happy Camp, CA 96039. Or, you can call in a donation at (530) 493-2012.

PS: I am sorry that our newsletters these past few months are mainly concerned with fundraising to defend our industry, rather than sharing the numerous video-enhanced stories which we have on file that demonstrate all of the fun and excitement our members are enjoying while discovering and developing high-grade gold deposits on our extensive properties. It’s just where we find ourselves at this point in America. We need to maintain an aggressive defense of our (real) right to explore for and develop valuable gold deposits on the public (and private) lands in America for all Americans, and for future generations. We still actually do possess these rights. The extremists will take them away if we allow them to. There is no other organization that is using highly-qualified specialists to do battle for us. The legacy of small-scale mining for precious metals in America is in our hands. This represents one of the last true freedoms remaining; we still have the right to freely explore for rich gold deposits and claim them for ourselves once found. We really ought to hold onto that one! Don’t you agree?

I’m sure we will have plenty of time for video-enhanced story-telling during future months. Please stay with us and be patient.

Meanwhile, thanks very much for whatever you guys and gals can do to help with the immediate matters at hand!

2009 Group Prospecting Programs

Just in case you didn’t know, these battles we are fighting only concern suction dredging within California’s active waterways. None of the other types of prospecting or mining that we do are being challenged. These include panning, sniping & Vack-mining, sluicing & high-banking, booming, electronic prospecting and other types of prospecting that do not use a suction nozzle within an active stream, river or creek. So the ongoing litigation does not affect most of the activity which we do, including our group weekend projects.

All weekend events are free to Full & Associate Members. Here follows the schedule of Events for our upcoming season: June 6 & 7; June 27 & 28;  July 18 & 19; August 8 & 9; August 29 & 30.

The Experience is worth its weight in gold!

Winter/Spring Tour Schedule

Here follows a list of the remaining trade show events we will attend during the upcoming winter and spring months. All members are invited and encouraged to participate in our booth at these shows. We have a lot of fun. Doing these shows allows us to share some quality time together outside of Happy Camp.