SECOND QUARTER, APRIL 2015 VOLUME 29, NUMBER 4
Newsletter By Dave McCracken General Manager
Most prospectors by now are aware that on 12 January 2015, the San Bernardino Superior Court issued an opinion that both the Legislature’s moratorium against suction dredging, along with the Department of Fish & Wildlife’s (DFW) recent adoption of 2012 dredge regulations are illegal and not enforceable as a matter of law. Here is the court’s Decision.
It is a sign of the times that employees of administrative agencies only believe the law should apply to the public, not to themselves. So we should not be surprised that DFW is now acting as if the Superior Court never ruled. They have been informing the public that they intend to continue enforcing the State’s illegal moratorium. This is quite clear on DFW’s web page which was updated as recently as the 2nd of March.
However, encouraged by the San Bernardino Ruling, suction dredgers statewide have been preparing for the upcoming mining season, which we believe has already begun on those waterways which have historically been open to dredging year-round within all previous California regulations. Suction dredging is already taking place along the mid-Klamath and Lower-Klamath River near Happy Camp!
New 49’er policy concerning suction dredging is that we will not interfere with members who also interpret the San Bernardino Ruling to allow dredging. But our Internal Affairs staff will enforce some self-imposed dredging Rules in light of the legal uncertainties surrounding suction dredge mining. These emergency Rules concerning suction dredging are attached as the final pages of this newsletter.
We are also aware that the New 49’ers Legal Fund has received financial contributions that may be available to defend members or others who are harassed or prosecuted by State authorities that attempt to enforce regulations which have already been deemed illegal by the California court system.
Let’s all hope that this will be one of our most productive suction dredge seasons on the Klamath River!
DFW Wardens Back Off During First Contact With Suction Dredgers!
Story by Derek Eimer & John Rose
Derek: On the 3rd of April, I set up a 2 ½-inch sampling dredge on the Klamath River downstream of Happy Camp near to where I made an incredibly rich gold strike a few years ago. It is still early in the season, so I was just sucking up small samples to process with my gold pan. Shortly after getting started, I looked up and saw that there were two DFW wardens watching me from up on the road. John Rose was up there talking with them. So I shut my machine down and crossed the river to see if they wanted to talk to me.
John: Someone had reported to the office that there was a dredge in the river down on our newer K-23AA property, so I went down for a look. Sure enough, Derek was over on the other side of the river operating a suction dredge. As I was standing there watching, the two DFW wardens arrived in their patrol vehicle. I went over and introduced myself as Deputy Director of Internal Affairs for The New 49’ers. The officers were polite and cordial. My impression is that they were somewhat sympathetic and perhaps a little embarrassed to be caught in the middle of a silly struggle over small suction dredges; and would rather have been out chasing poachers or real criminals.
Derek: The wardens were also polite to me when I walked over to my truck and started changing out of my wet boots. When they asked what I was doing across the river, I told them I was sucking up small samples off the bottom of the river. They replied by asking if I was aware that my activity was in violation of Section 5653 of the Fish & Wildlife Code. I responded by handing them the portion of Judge Ochoa’s Decision that explains Section 5653 in its present form is not enforceable by DFW. They seemed genuinely surprised as they read the final part of Judge Ochoa’s Ruling.
John: The wardens told Derek they were going to take his suction hose and nozzle for evidence, write up a report and submit it to their superior, who might or might not forward it to the Siskiyou County District Attorney for prosecution. When I asked how long all that would take, the warden answered that it could take several months or longer.
Derek: I just told them that I would be back out on the river with another hose and nozzle on the following day!
John: The wardens responded that they would just keep on coming out and taking the hoses and nozzles away, or perhaps at some point arrest Derek. So I suggested if it were going to eventually result in an arrest, why not just arrest Derek on the spot?
Derek: That’s when I told the wardens that I would fully cooperate with being arrested just so we could get the whole matter in front of a judge without further delay. My suggestion prompted one of the wardens to get on the radio in their patrol car.
John: Our office manager, Tony Balderrama, is a dedicated amateur radio operator. He uses the New 49’er radio system to regularly monitor all of the Siskiyou County emergency frequencies. This is because we have so many active members, if there is ever an emergency; we are more likely to find out about it faster over the emergency channels. Later, when I returned to the office, Tony told me he that he took notes of the entire exchange between the warden and his dispatcher. The conversation began at 2:10 pm. “The subject is requesting to be arrested,” said the warden. At 2:20, the dispatcher answered “The Watch Commander says that’s a negative on making an arrest or issuing a citation.”
Derek: The warden returned and said he would issue me a receipt for my nozzle and suction hose. Then he asked if I would mind going across the river to fetch them. I answered that I was not going to help them confiscate my own equipment when I did not believe I was doing anything wrong in the first place.
John: Since the wardens had no safe way to cross the river, they must have come back the following day with a boat, because Derek’s nozzle and hose were gone. True to his convictions, Derek returned with another hose and nozzle and is now back out on the river continuing his sampling program. Here is some video which captures Derek back out there on a beautiful spring day:
Quite a few other members and locals have been coming out and giving Derek encouragement. I captured this moment on video:
Other dredgers are also arriving in Happy Camp. Two members dredging elsewhere on the river brought more than an ounce of gold into the office yesterday that they dredged up in a single day! That’s an image of their gold at the top of this newsletter.
The Legal Fund is Giving Away 2 Fantastic Gold Detectors!
We are very pleased to announce that Garrett Metal Detectors is generously supporting The New 49’er Legal Fund’s new 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.
You can find out more right here.
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 more experienced than you are.
Schedule of 2015 Events: June 6 & 7; June 27 & 28; July 18 & 19; August 8 & 9; and August 29 & 30.
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Please take notice of the following Emergency Rules that are effective immediately:
A recent Court opinion declaring § 5356.1 of the California Fish and Wildlife Code unconstitutional, together with the 2012 dredging regulations that were adopted by the California Department of Fish and Wildlife (DFW) but never made effective, has prompted some members to begin suction dredging on New 49’er properties. According to its web site, DFW appears to be taking the position that the agency does not accept the Court’s ruling; although since the ruling, they have not issued citations to any active suction dredgers as far as we know.
Since the Court ruled that California’s dredge permitting moratorium is unconstitutional, making it unenforceable as a matter of law, The New 49’ers are not going to prohibit suction dredging on our mining properties. But members who choose to dredge should be aware that they may be hassled by the authorities, and even face the possibility criminal prosecution.
With the Moratorium and 2012 dredge regulations invalidated by the Court, it is difficult to assess which, if any, state regulations remain in effect, though federal rules and regulations do apply.
Unregulated suction dredge activity is unacceptable on New 49’er properties. Therefore we are hereby adopting the following Emergency Rules for the duration of this period of uncertainty. Please note that we have carefully crafted these Rules from the DFW suction dredge regulations which applied to our properties during the 2009 season when the illegal moratorium was imposed. We have modified them in consideration of concerns voiced during the San Bernardino proceedings, along with the ongoing drought situation in California.
Being that we have been in active litigation with DFW and anti-mining activists over the validity of suction dredge regulations for more than 10 years, we consider this matter very serious, and will therefore immediately suspend the mining privileges of any member who does not conform to these Rules on New 49’er properties. No exceptions!
Suction Dredge Use Classifications and Rules
(a) Suction Dredge Use Classifications. For purposes of these Rules, the following classes of suction dredge use restrictions apply in streams and rivers on New 49’er properties as specified:
(1) Class A: No dredging permitted at anytime
(2) Class B: Open to dredging from July 1 through August 31
(3) Class C: Open to dredging from the fourth Saturday in May through October 15
(4) Class D: Open to dredging from July 1 through September 15
(5) Class E: Open to dredging from July 1 through September 30
(6) Class F: Open to dredging from December 1 through June 30
(7) Class G: Open to dredging from the fourth Saturday in May through September 30
(8) Class H: Open to dredging throughout the year
(b) Except as specified in subsections (c) and (d) below, the suction dredge class restrictions for Siskiyou County is Class E. This will apply to our properties located on Indian, Elk and Thompson Creeks.
(c) A six-inch diameter intake nozzle size is permitted on the Klamath River in Siskiyou County.
(d) In addition to the classifications listed in (b) and (c) just above, these special Rules apply to the following waters:
Klamath River, Main Stem in Siskiyou County: The main stem Klamath River from the Salmon River upstream to 500 feet downstream of the Scott River is Class H. This applies to all of our properties along the mid-Klamath and Lower-Klamath. From 500 feet downstream of the Scott River upstream to Iron Gate Dam is Class G. This applies to our properties on the Upper-Klamath and Upper mid-Klamath River.
Salmon River in Siskiyou County: The main stem Salmon River is Class D; the North Fork of the Salmon River from the South Fork Salmon River upstream to the Marble Mountain Wilderness boundary is Class D.
Scott River and Tributaries in Siskiyou County are Class G.
(e) Equipment Requirements.
(1) Nozzle Restriction: No suction dredge having an intake nozzle with an inside diameter larger than four inches may be used except for use on the Klamath River as outlined in (c) above unless a constricting ring with an inside diameter not larger than four inches has been attached to the intake nozzle. This constricting ring must be of solid, one-piece construction with no openings other than the intake and openings not greater than one inch between the constricting ring and nozzle. It must be welded or otherwise permanently attached over the end of the intake nozzle. No quick-release devices are permitted.
(2) Hose Restriction: The inside diameter of the intake hose may not be more than two inches larger than the permitted intake nozzle size.
(f) Restrictions on Methods of Operation.
(1) Winching is permitted under the following provisions:
(A) Boulders and other material may only be moved within the existing water line. No boulders or other material shall be moved outside the water line.
(B) Winching of any material embedded on banks of streams or rivers is prohibited.
(C) Winching of any material into a location which deflects water into the bank is prohibited.
(D) No power-winch activated shovels, buckets or rakes may be used to excavate materials in the stream course.
Nets and other devices may be used to collect cobbles and boulders by hand for removal from dredge holes providing the materials are not removed from within the water line.
(E) No woody streamside vegetation shall be removed or damaged. Trees may be used as winch and pulley anchor points provided that precautions are taken to ensure that trunk surfaces are protected from cutting or abrasions.
(2) No person may suction dredge into the bank of any stream, lake or river.
(3) No person shall remove or damage woody riparian vegetation during suction dredge operations.
(4) No person shall move any anchored, exposed woody debris such as root wads, stumps or logs.
(5) No person shall divert a stream or river into the bank.
(6) No person shall dam or otherwise obstruct a stream, river or lake in such a manner that fish passage is impeded.
(7) No person shall import any earthen material into a stream, river or lake
(g) Dredge concentrations: No more than 10 dredges per mile may operate along New 49’er properties at the same time along the Klamath River; no more than 5 dredges per mile along the Scott or Salmon Rivers, and no more than 3 dredges per mile along Indian, Elk or Thompson Creeks.
(h) Additional restrictions: Please note that the New 49’er published Claims Guide has listed some specific areas along our properties which are off limits to suction dredging because of the location of cold water refugias that fish are alleged to rely upon during the warm water months. There are also some off-limit areas that are claimed to be of cultural significance to the Karuk Tribe. This subsection, along with subsection (g) remains enforced due to agreements we made with the Tribe and U.S. Forest Service many years ago, agreements which we will continue to honor.
These Rules are effective as of 1 April 2015
Rich Krimm, Director of Internal Affairs,
The New 49’ers Prospecting Association, 27 Davis Road, Happy Camp, California 96039 (530) 493-2012 www.goldgold.com