New 49'er Newsletter

SECOND QUARTER, MAY 2015                               VOLUME 29, NUMBER 5

Dave Mack


Newsletter By Dave McCracken General Manager






Dredging Gold 2015

Here is a day’s production by two guys dredging on the Klamath River last week when
they were arrested by game wardens.  The whole interesting story can be found below:

Here is some news to bring you guys up to date on what has turned into a fast-moving series of events along the Klamath River in Northern California:

Suction dredgers have been arriving by the day to start the season. California wardens initially came out and harassed some of them, insisting upon enforcing California’s moratorium on suction dredging, which has been struck down as illegal and unenforceable by the San Bernardino Court. The wardens were refusing to take any dredger into Siskiyou County Court for an immediate hearing on the matter (which would involve making an arrest).

Therefore, our attorney, James Buchal, drafted a civil lawsuit to be filed in Siskiyou County on behalf of several dredgers who were being harassed by the wardens. The lawsuit was only going to ask the judge to issue an Order restraining the wardens from enforcing the unlawful moratorium.

In turn, the State immediately filed an objection with the San Bernardino Court on the grounds that these suction dredgers cannot file a lawsuit in Siskiyou County, because all dredging-related cases have been coordinated in San Bernardino. Here follows the Reply that James Buchal filed with the San Bernardino Court. Note that the main moving documents for the planned Siskiyou County lawsuit are also there as an exhibit.

In a surprising oral ruling on 30 April in San Bernardino, Judge Ochoa instructed our attorney, James Buchal, that he could not file for injunctive relief in Siskiyou County to prevent California Department of Wildlife (DFW) wardens from enforcing the suction dredge moratorium (which Judge Ochoa decided is illegal, unconstitutional and unenforceable several months ago). The judge instructed that our motion for injunctive relief should be decided in his own courtroom. Here is a short update from our attorney.

The hearing on Injunctive Relief has been set for 8:30 am on the 23rd of June. The good news is that this particular hearing will be in front of Judge Ochoa who undoubtedly has more knowledge about California’s suction dredging situation than any other judge in California. He has already ruled that California’s moratorium on suction dredging is an unlawful scheme to thwart the will of congress. He also suggested on 30 April that he is inclined to grant us the relief we are asking for — but for due process purposes, would like to conduct a hearing on the matter with all parties present.

Therefore, the existing status quo has not changed. Prospectors believe Judge Ochoa’s Ruling allows us the right to operate our dredges. DFW wardens warn that they will be out seizing dredging gear that is in violation of the unconstitutional moratorium. And Judge Ochoa ruled that there will be no civil remedy available for dredgers to stop the unlawful conduct of DFW wardens for another 8 weeks or so. This situation is like something out of a science fiction story!

Here is an opinion I voiced on our Internet forum soon after Judge Ochoa stopped us from filing for relief in Siskiyou County:

“I am not a licensed attorney, so I cannot provide legal advice. All I can do is present my own opinion based upon my personal observations from following the chain of events: Since the State clearly does not want the enforcement of an unlawful moratorium issue in front of our local Superior court, my best guess is that the wardens will not issue criminal citations if dredgers refuse to sign them — because that would trigger an arrest which I believe requires a hearing in front of a local judge within 48 hours. To date, my understanding is that the wardens have not issued a single citation to dredgers who made it clear they would not sign them.

If they issue a citation which the prospector is willing to sign, I seriously doubt the citation will ever be prosecuted, since the moratorium has already been found illegal.

So my own opinion is that the likelihood of criminal liability for operating a suction dredge in California is very low at the moment, even though the State authorities may come out and make it sound like you are in a lot of trouble.

If the relief we are requesting is granted, the court will order all seized equipment to be delivered back to the dredgers it was taken from.”

Two dredgers arrested!  But in a surprising turn of events on the first of May, California Fish & Wildlife (DFW) wardens arrested two suction dredgers on the Klamath River because they refused to sign the promise to appear portion of the citations they were being issued. The citations were for suction dredging-related issues, namely for violating the unlawful moratorium and 2012 regulations, both which have been struck down by Judge Ochoa in San Bernardino County.

Since it is taking so long to obtain helpful relief in the civil litigation in San Bernardino, these dredgers believed that if they could be arrested for dredging violations, the question about DFW authority to enforce the unconstitutional moratorium could be resolved on a fast track in front of a local judge, and maybe we could immediately get this rogue agency off our backs.

My own understanding is that once someone is booked into the county jail, California law requires that the person be brought in front of a judge within 48 hours, Sundays and holidays excluded. Since the moratorium has already been ruled unconstitutional in settled law, it would seem the chances are reasonable that the judge would dismiss the case, order immediate return of equipment, and order DFW to not bring in any more dredging cases. That would immediately free up our 2015 dredging season.

The problem is that once the two dredgers were processed at the county jail, they waived their right to the 48-hour hearing by signing a promise to appear in June! That’s pretty disappointing, because we might have had the relief we all have been asking for as soon as last week. I gather the dredgers didn’t really understand that signing the document was going to push back the resolution. Even if they made a mistake, we must give them credit for their courage for standing up in the first place.  To their credit, these two dredgers had made an important gold discovery on our new Ukonom Gold Claim at K-25AA. Here is just a single day of their gold production captured on video:

Until this ongoing conflict with the wardens is settled, if you decide to suction dredge in California, I would suggest that unless you are prepared to sit in jail for a few days, you might just as well sign the promise to appear at a later time out alongside the river and save yourself from the entire arrest routine.

Said another way, the only reason I can think of to insist upon your right to a speedy hearing in front of a judge is that you are willing to see it through all the way behind bars for a few days, where, by the way, I hear they have fairly good food, good TV, a library, maybe even a basketball court, and a clean bed.

This exercise had us so close to an important resolution if front of a local judge! Since that didn’t happen, but the arrests were made, our attorney is now attempting to coordinate with the District Attorney to get the moratorium enforcement question decided as soon as possible to save everybody more hardship, including the Siskiyou County jail and court system.

Our Internal Affairs made sure that the two dredgers made it safely home; and it is my own bet that their cases will eventually be dropped or dismissed. One of the guys has already resumed dredging.  When asked, his explanation was that the present situation is about much more than our right to dredge for gold.  It is about our right to be free from the unlawful conduct of State officials.  And, of course, he is absolutely right!

Having said that, I will also say that despite our differences, all of the contact between suction dredgers and DFW wardens has been polite and professional.

Please be mindful that, since it appears as though the State does not presently have any lawful authority to regulate suction dredging in California, we have adopted our own set of Emergency Dredging Rules which apply to the extensive properties which we control in northern California.

Meanwhile, just in case you do not know, this ongoing conflict with the State only affects suction dredging within 100 yards of California’s active waterways. It does not have anything to do with the other types of prospecting or mining that we do in California. Unaffected prospecting activities include panning, sniping & vack-mining, sluicing & high-banking, electronic prospecting and other types of prospecting that do not use a suction nozzle within 100 yards of an active stream, river or creek. It also does not affect our group weekend projects.

To continue prospecting the bottom of active waterways, some members have converted to underwater crevicing, using the hookah and pump from their 5 and 6 HP motors on floating platforms to provide air for breathing and a jet of water to help move material out of the way, thus coining the new method as “underwater blow mining.”

There are no seasons imposed upon these other types of mining activity. In other words, you can do them at any time of the year. 

Join us for our Weekend Group Mining Projects This Season!

There is a learning curve to successful gold prospecting.  One of the most effective methods of progressing through the learning curve is to go on prospecting adventures with others who are more experienced than you.

Our 2-day Group Mining Projects are one of the primary benefits of New 49’er membership which set us apart from other mining associations.  All weekend events are free to Full & Associate Members.

Schedule of 2015 Events: June 6 & 7; June 27 & 28; July 18 & 19; August 8 & 9; and August 29 & 30.

Schedule of Events

Don’t Forget About Our Ongoing Legal Fund-raiser!

I am very pleased to announce that Garrett Metal Detectors is generously supporting this next fund-raiser with their brand new top-of-the-line ATX pulse induction gold detector.  That is a $2,500 machine!

Garrett is also donating a refurbished AT Gold metal detector as a second prize (“refurbished” means the unit was used as a demo at a trade show, but never used in the field, and then put back through quality control and repackaged in new condition). This is an $800 machine!

These are both fantastic gold machines which can actually be taken underwater to shallow depths!

The drawing will also include 20 American tenth-ounce American Gold Eagles.

The drawing will take place at our Saturday evening potluck in Happy Camp on June 27. You do not need to be a member of our organization to participate. You are welcome to be at the drawing, but you do not need to be present to win.

Our office will automatically generate a ticket in your name for every $10 legal contribution we receive ($100 would generate 10 tickets). There is no limit to the size or frequency of your contributions, or to the number of prizes you can win. Look for our new Paypal contribution link here.

Remember, all contributions to The New 49’ers Legal Fund are tax deductible.

You can find out more about The Legal Fund’s ongoing fund-raiser by going right here.

Once again; thank you guys very much for standing behind our efforts!

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

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