Dave Mack

“Motion to the Superior Court of San Bernardino to Prevent California from Enforcing its Unconstitutional Moratorium upon Suction Dredging and Return to the 2009 Regulations until they can be Updated in a Way That Does Not Break the Law.”

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Update as of 19 May:

Judge Ochoa of the Superior Court of San Bernardino has now issued an Order which confirmed his earlier Ruling that California created an unconstitutional “scheme” of first enacting Section 5653 of the DFW Code which requires suction gold dredgers to obtain a permit from the State, and then enacting Section 5653.1 which prevented DFW from issuing any suction dredge permits.  His Order and Ruling declared that both the State’s recently-adopted 2012 dredge regulations and the moratorium preventing the issuance of permits are unconstitutional, illegal and unenforceable.

This was a huge win for our industry!

This Ruling has prompted some people, particularly along the Klamath River in northern California, but also in other places, to resume gold dredging operations.  But the Department of Fish & Wildlife (DFW) has continued to enforce the unconstitutional moratorium.  DFW wardens initially were out on the river generally harassing dredgers about breaking the law. They have written some criminal citations.  They even seized some equipment.  That prompted The New 49’ers a few weeks ago to file for an immediate injunction in Siskiyou County Superior Court to force DFW to stop enforcing a moratorium that has already been found unconstitutional by the California court system.  Had we got our day in court, this seemed like it would have been a slam-dunk for our side!

But the State’s attorneys scheduled an immediate hearing in front of the San Bernardino Court, requesting that our motion for an injunction be stopped in Siskiyou County because the California Judicial Council has decided that all suction dredging cases be consolidated and resolved in front of Judge Ochoa.  Judge Ochoa agreed, and a hearing date for our motion for relief from DFW’s unlawful actions has been set for 23 June in San Bernardino.

Meanwhile, in an effort to get the matter resolved more quickly, several suction dredgers on the Klamath River refused to sign the promise to appear portion of the criminal citations they were being issued (unlawful dredging), opting instead to be arrested.  Ultimately, one of those very courageous guys ended up in jail with The New 49’ers Legal Fund hiring James Buchal to represent him.  That hearing in front of a Siskiyou County judge was to take place within 48 hours.  Mr. Buchal was motioning the Court to dismiss all charges, order a return of all seized equipment, and order DFW to not bring any further dredging cases in Siskiyou County.  Had we got our day in court, this also seemed like it would have been a slam-dunk for our side!

What we had not planned on was that the Siskiyou County jail is completely full of people serving time for felony convictions.  Our local sheriff Lopey was objecting strenuously that in order to incarcerate a suction dredger for a rather minor misdemeanor charge, he was going to have to release a hardened criminal back onto the streets.  This all caused quite a stir at the jailhouse in Yreka while all the key players were trying to figure out what to do.  Ultimately, according to my limited understanding, the District Attorney decided to defer the charges (or something like that) and let the dredger out of jail with no agreement that he appear in court at some later time.  Once the dredger was released, the required 48-hour hearing in front of a judge was lost.  So it was kind of like being arrested and let go.  What can I say; it’s California!

Therefore, as it is now, it does not look like there are any civil or expedited criminal remedies available to us in Siskiyou County to get this rogue agency off our backs.

Yes; I know there are some very important due process issues in play here.  We have considered all possible options, and have decided that our best course of action is to wait it out a little longer and place our hope for a 2015 dredging season with Judge Ochoa – who knows more about our plight than any other judge in the country.

Several dredgers have signed a promise to appear (for unlawful dredging) in Siskiyou County on 9 June.  I’ll be surprised if the State moves ahead with that, but we shall see.

We filed our opening salvo in San Bernardino yesterday (May 18th).  The relief we are asking for is to return to the 2009 suction dredge regulations which were in affect at the time that the unconstitutional moratorium was imposed upon our industry – and stick with those until they can be updated in a way that does not break the law.

I am following with the key moving documents, the proposed Order, supporting Declarations, including several which provide an abundance of science to support our position.  The links begin with a letter to the judge explaining that his decision to prevent civil relief in Siskiyou County has prevented suction dredgers from access to any timely due process to prevent the continuing unlawful conduct of DFW. You can see that we are really making our strongest effort to regain hassle-free suction dredging in California this year:

Letter to Court from James Buchal


Notice of Motion for Injunction

Memorandum in Support of Motion for Injunction

Request for Judicial Notice

Declaration of James Buchal

Petition for Administrative Rulemaking


Proposed Order from the Court


Declaration of Dave McCracken

Declaration of Richard Krimm

Declaration of Claudia Wise

Claudia Wise Summary of Experience

Declaration of Joseph Greene

Joseph Greene Summary of Experience

Siskiyou National Forest Suction Dredge Study

Declaration of Thom Seal

Declaration of Eric Maksymyk

Declaration of Derek Eimer

Declaration of Steve Kleszyk

Declaration of Chad Stanford

Declaration of Robert & Anna Sonnenburg

Declaration of Mark & Elizabeth Cutler


Here follow the State’s primary Opposition documents to our motion for an injunction:

Defendant’s Opposition to Injunction

Defendant’s Objections to Miners’ Evidence

Declaration of Stafford Lehr


Here follows a link to the very substantial Opposition filed by the Karuk Tribe and their anti-mining allies. Note that the actual Opposition brief is the 28-page document towards the bottom.


Here follows the New 49’er and PLP Joint Reply documents to the State’s Opposition:

Reply to DFW Opposition to Injunction

Reply to Karuk Opposition to Injunction

[Proposed] Order Granting Injunction

Scientific support:

Declaration of Joe Greene

Declaration of Claudia Wise

Declaration of Thom Seal

Declaration of Eric Maksymy

Situation on the ground:

Declaration of Dave McCracken

Declaration of Dyton Gilliland

Declaration of Stephen Jones

Declaration of David Guidero


Transcript of Injunction Denial