(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