Dave Mack

“The Karuk’s legal challenge to longstanding suction dredge regulations in California ultimately resulted in a new set of very unreasonable regulations which were adopted in 2012 along with a Moratorium imposed by the legislature to prevent suction dredging altogether.  All of this prompted multiple lawsuits which were ultimately consolidated in front of Judge Ochoa in the San Bernardino Superior Court.  After many years of ongoing litigation, Judge Ochoa awarded California suction dredgers a huge win on January 12th 2015 by declaring California’s “scheme” of first passing a law that requires us to obtain a permit, and then passing another law making permits unavailable, as an unlawful and un-enforceable interference with the intention of congress. This is truly a great win for all gold miners!  Since this is surely not the end of the story, we will begin here with developments as they move forward”

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Dave Mack

“Here are some links to Information on the Karuk tribe lawsuit against the California Department of Fish and Game to change dredging regulations…”

Please make a donation to our Legal Fund.

Important note:  This case has been going on so long, that most of what has happened is ancient history  A more recent very important development is that on 12 January 2015, San Bernardino Superior Court Judge Ochoa handed small-scale miners a huge victory by deciding that California’s Moratorium against suction dredging in combination with its recently-adopted 2012 regulations amount to an unlawful and un-enforceable scheme to thwart the will of congress.  Here is the Court’s Decision, and here is a shorter explanation from our attorney.  Since this is sure to change the outcome any remaining litigation, we will start with a new page which can be found here:

Explanations About This Case:

Key Court Documents:

 

FIRST QUARTER, January 2006 VOLUME 20, NUMBER 1

By Dave McCracken General Manager

 

 
At just about the same time that the Karuks lost their lawsuit in Federal Court last spring (suit to stop in-stream mining within the Klamath National Forest), they quietly filed another lawsuit against the California Department of Fish and Game (DFG) to stop in-stream mining within the Klamath National Forest.

The reason we only recently found out about the pending litigation in California, is that the Karuk’s chose to file their lawsuit down in Alameda County, far distant from the specific areas of mining they are attempting to shut down within Siskiyou County. According to DFG, it is not their policy to inform the communities which could be negatively impacted by ongoing litigation, even when settlement agreements might affect those communities. So the mining community was never notified of the ongoing litigation!

More recently, DFG and the Karuks came to a Settlement Agreement within the litigation. As a result, DFG has already begun to implement modified dredge regulations as they apply to the waterways within the Klamath National Forest for the 2006 dredging season.

According to the modified regulations which are now being sent out by DFG, the Klamath, Scott and upper Salmon rivers have been reduced to a dredging season between 1 July through 15 September, and all dredging has been eliminated along the lower Salmon River, Indian Creek, Elk Creek, and other waterways. The notice can be found at the beginning of the DFG suction dredge regulations, a copy which can either be obtained from the DFG, or by visiting their web site.

All of this took place without a single notice to the thousands of people that will be negatively impacted by these changes!

Prior to these changes, the existing DFG dredging regulations have been supported by a full Environmental Impact Statement (EIS) that was completed during the mid-1990’s. The entire EIR process played out over the course of several years, with representatives from the mining community, environmentalists, organized rafting groups, County governments, State lawmakers and many, many others taking an active roll in the process. The California Administrative Procedures Act (APA) and California Environmental Quality Act (CEQA) each require State agencies to follow a very structured public process before it may adopt or change any regulations that could have a negative consequence upon communities within the State.

Through the course of this litigation, we are now going to find out if California law allows a State Agency to set aside all of the work that has been accomplished through a public process like this, and just give it all away to extremists in a (behind closed doors) court settlement – without so much as a single word to the thousands of people who will lose property rights.

As this negative situation directly impacts upon the rights of our members, and we are already in litigation with the Karuk Tribe, we have agreed with other leaders within the greater mining community that The New 49’ers will take the lead in fighting these modified dredge regulations that have just been issued by DFG.

We have already retained James Buchal and some of his associates to represent us. James was the lead attorney who helped us defeat the Karuks earlier this year in the federal litigation. He also helped small-scale miners in Southern Oregon defeat similar litigation by the very same extremists just within the past few months.

The good news is that our attorneys immediately contacted the Alameda Superior Court where this litigation is pending, and the Settlement Agreement (which DFG is already implementing) has not yet been signed by the judge! Immediately upon finding out about this very negative situation, our attorneys alerted the judge in this case (Judge Sabraw) that miners would be negatively impacted and wish to be heard before any Judgment or Settlement is made final.

Under the New 49’er banner, our attorneys filed 2 legal briefs in the case on 16 December. The primary brief is our Motion to Intervene in the ongoing litigation.

Because of our pending Motion to Intervene, in a hearing on 20 December, Judge Sabraw decided to not adopt the proposed Settlement Agreement between DFG and the Karuks (yet). Instead, she scheduled January 26, 2006 to hear our Intervention Motion and also to hold a hearing on the Settlement Agreement between DFG and the Karuks. We have until January 10, 2006 to file an Opposition to the Settlement. Our attorneys are already working on it.

Actually, DFG’s formal Answer to the Karuk’s Complaint in the litigation says that they have done nothing wrong in the way they have managed the suction dredge regulations. They deny all of the Karuk allegations. DFG also denies all of the allegations in the Stipulated Agreement, but acknowledges that the Settlement is easier and less expensive than going forward with the litigation. They have even agreed to pay the Karuk’s legal expenses!

So, basically, to save itself from the discomfort of pursuing a defense on its own behalf (which is what the California Attorney General is supposed to do), DFG has sold out the rights of miners and agreed to pay money to extremists!

What country is this?

I do not believe that DFG possesses the authority to impose further restrictions upon suction dredgers without going through the full APA process, unless they can demonstrate that emergency changes to the regulations are justified by presenting conclusive evidence of harm to a protected species.

All the Karuks ever presented in the federal litigation were generalities. No specifics.

Generalities won’t do!

I also do not believe that DFG possesses the authority to negotiate our mining rights away in a court settlement behind closed doors just to save itself from litigating over the way it does things!

As long as the judge in the existing litigation will hear us, we will be pushing to set aside any changes to the pre-existing dredge regulations until DFG can demonstrate that an actual emergency does exist and can support the concern with specific information.

Remember that we hired several expert fish biologists to perform a study on the effects of suction dredging this past season? I think we are going to be glad we did that!

If it is too late for us to be heard in the existing litigation, we will be forced to file a lawsuit of our own against DFG for violating the Administrative Procedures Act and the California Environmental Quality Act. Both of these important laws require DFG to include us in any process that will affect our business. We have not been included!

I hope you guys agree with me in this plan, because it is going to cost money that we do not have in the bank, yet.

Fortunately, many of us stepped up to the plate and we were able to pay off all our earlier legal expenses within a short period of time. I am

very thankful for that, because now we have earned some credibility with the specialists who give us support when we need it. It was because of that credit that we have been able to react so quickly in this case. We have our foot in the door because the settlement agreement between DFG and the Karuks has not yet been signed off by the judge.

By the way, we also have found out that the Karuks do not have any federally-recognized fishing rights. Yet DFG apparently has a policy of allowing them to net salmon out of the river all they want, without any kind of fishing license. The Karuk’s are netting Salmon out of the river and killing them at the very same time the COHO salmon they wish to protect is migrating upstream to lay its eggs. So while DFG has made a settlement behind closed doors to curtail the suction dredging activity (there is not a single recorded case of a dredger ever harming a COHO salmon), they continue a policy of allowing Karuks to net out as many salmon as the want — even though it is directly against the law!

For our part, winning this battle is mostly going to be about raising money to pay the specialists on our side. So, once again, I am putting out the call for everyone interested in the outcome of this to please immediately send a $10 donation to: The New 49’ers Legal Fund P.O. Box 47, Happy Camp, CA 96039. Donations can also be made by Pay Pal on our Forum Site.

We have created a special page for this ongoing litigation on our website. All of the key Court documents are there in the event that you want to inspect them.

After we defeated the Karuk’s in federal court, we expected that we would soon face a challenge in State Court. But we are surprised to find out that it has been ongoing since May!

The Karuks are entirely based in Siskiyou County. All of the waterways they seek to close to suction dredging are in Siskiyou County. But they filed their lawsuit way down south in the Alameda Superior Court! How underhanded can you get?

It is incredible how fast we organized to get competent attorneys representing our interests in this situation! We should acknowledge ourselves for doing good so far in this. But it is not over yet!

The reason we won in the federal litigation is that so many members contributed financially so we could pay good attorneys to represent us. The result of that litigation has put us in the best shape ever at the federal level. This new situation allows us an opportunity to do the very same thing at the State level.

We really have to win this one! I hope you guys will help.

 

Planning for 2006 Season

With your help, I believe that we have a reasonable chance of persuading DFG to withdraw its modified suction dredge regulations before springtime. In addition to the legal action we are presently pursuing, we may also need help from the members in requesting assistance from various State lawmakers and Governor Arnold Schwarzenegger. Please watch closely for what we have to say about this next month.

Meanwhile, I suggest it is important for members to at least plan your summer prospecting activities around the times and places that are not affected by DFG’s amended dredge regulations: The following times, places, activities and events are not affected:

1) Panning, crevicing, sniping (in the water), vack-mining, high-banking, electronic prospecting and all other surface-type prospecting is open on all of the waterways of Siskiyou County, all year round. No permits are required along our mining properties beyond what the Club already does on your behalf as long as you operate within our rules.

Methods of Finding Gold

2) Suction dredging on the North & South Forks of the Salmon River, the Scott River and along all of our claims on the Klamath River are open to suction dredging between 1 July through 15 September. Only persons who actually operate the suction nozzle are required to obtain a DFG permit for this.

Master List of Our Mining Properties

3) The following scheduled events are unaffected by the modified regulations:

Weekend Events:
June 10 & 11; July 1 & 2; July 22 & 23; August 12 & 13; September 2 & 3.

Week-long Gold Dredging Projects:
July 8 through July 14; July 29 through August 4; August 19 through August 25; September 9 through September 15.

Special Week-long Above-water Group Mining Project: June 17 through June 23

 

Dave McCracken

General Manager

 
Dave Mack

“Here is some further explaination of the Karuk Tribe Lawsuit against the California DFG to change dredging regulations…”

(Forum post dated 22 May, 2006)

Hello everyone.

There is a new development in the Karuk/DFG litigation. Walter Eason, A person with gold mining interests, filed a Motion on his own behalf to intervene in the ongoing litigation on May 12th, just last week.

We were expecting a decision from the judge at any moment concerning whether or not she would strike down the Stipulated Agreement which was negotiated by the Department of Fish & Game (DFG) and the Karuk Tribe to end the litigation. That Agreement imposes more restrictions upon our industry. A lot of miners have been waiting in the wings for the judge’s decision, because it makes the difference whether or not the dredging season opens up on the upper Klamath River on May 27th, or on July 1st.

Mr. Eason has been very supportive of our position in this litigation during the past. More recently, he has discovered a legal decision (Boisclair v. Superior Court (1990) 51 Cal 3d 1140) concerning a Superior Court’s lack of subject matter jurisdiction to decide any matter concerning Indian rights. Through correspondence with me, the attorneys who are representing miners in the litigation, and others within our industry, it is clear that Mr. Eason believes it is imperative that we immediately file a Motion to Dismiss the whole case.

We respectfully disagreed with Mr. Eason’s position for several reasons: (1) We don’t believe this case has very much to do with adjudicating Indian rights. The Karuks are suing DFG because they do not believe DFG has followed all of the provisions required by the California Environmental Quality Act (CEQA). (2) We believe the Stipulated Agreement between DFG and the Karuks is totally illegal. We believe there is a reasonable chance the judge will agree with us about that. Since all of the arguments have been placed in front of her on this matter, and the dredging season is nearly upon us, we did not want to confuse everything by interjecting a whole new jurisdictional challenge into the process. Surely, this would delay the judge’s decision that everyone is waiting for.

Mr. Eason’s motion filed with the Court last week also requested that the Court not make any decision concerning the Stipulated Agreement until after his Intervention Motion and jurisdictional challenge is decided. Consequently, the judge decided on Friday to set a hearing date of 8 June to decide what to do about Mr. Eason’s Intervention motion. Unless I am mistaken, now we should not expect to receive any decision from the judge concerning our season until sometime after 8 June.

Before we start getting ourselves all charged up over this, I’d like to make two important points:

1) There is a lot at stake in this litigation. While our organization is doing its best to represent the interests of all small-scale miners in the litigation, it is unlikely that we can support every interest. I’m sure there must be a fair number of interests even outside of our industry that are not been adequately represented in the litigation.

It is especially important that if there is a class of miners out there who believe that we are not already adequately representing them, certainly we should allow them an opportunity to be heard. None of us should make the mistake of believing we have the only answer, or even the best answer. Who knows; perhaps Mr. Eason’s approach will be the winning argument before this is all over. And even if it isn’t, we should applaud his efforts to fight for the industry using arguments that he believes are very important. Clearly, the judge has taken Mr. Eason’s material seriously enough to allow him a hearing.

2) The Klamath River is still running at storm flows. The dams are full and letting enough water out to cause the river to run about 8 feet higher than normal summer levels. The Scott River is discharging muddy water into the Klamath, dropping underwater visibility to zero. It is like we are in the middle of a very large winter storm! Even most of the high-banking areas are underwater!

So even if the judge struck down the DFG/Karuk Agreement last week as we had hoped, most of the river is still too high and swift to dredge at the moment. I‘m not kidding; it is really running fast and turbulent! This probably is not going to change very much for at least another few weeks.

Therefore, we really have not lost anything because of this further delay in the judge’s decision.

I keep getting emails from people asking how legal the amended DFG regulations are, since they have not yet been endorsed by the court. I cannot give legal advice because I am not a licensed attorney. All I can do is express my own opinion – which is that I don’t believe the amended regulations are legal, and I don’t believe they can be enforced. Although this does not mean that the game warden will not go down and write you a ticket for dredging out of season under the amended regulations. He probably will! I’m mainly talking about what happens when you get to court. I don’t believe the court will allow DFG to prosecute a case against you for having violated a regulation that was not adopted pursuant to the legal process in the first place. Having said all that, I can tell you from long experience that it is very uncomfortable to be in trouble with the law, even when you are 100% right. Lawyers are expensive. Our organization is already plenty challenged trying to keep from falling even further behind on paying the costs of the ongoing litigation!

We all have to make our own decisions about these things. Because the river is running so high at the moment anyway, my own best advice would be to wait it out for a while longer.

Dave Mack

 

 
Dave Mack

“Here is an explaination of the Karuk Tribe Lawsuit against the California DFG to change dredging regulations…”

Hello Everyone,

We will be firming up details better as we move forward with this, but here are the facts as we know them:

1) At just about the same time that the Karuks lost their lawsuit in Federal Court (suit to stop in-stream mining within the Klamath National Forest) last spring, they quietly filed another lawsuit against the California Department of Fish and Game (DFG) to stop in-stream mining within the Klamath National Forest.

2) The reason we never heard about the pending litigation in California, is that the Karuk’s chose to file their lawsuit down in the bay area, far distant from the specific areas of mining they are attempting to shut down. According to DFG, it is not their policy to inform the communities which could be negatively impacted by ongoing litigation, even when settlement agreements might affect those communities.

3) More recently, DFG and the Karuks came to a settlement agreement within the litigation. We have not yet been able to obtain a copy of that agreement, because the Karuk’s refuse to give us a copy, and DFG has not responded to our request for a copy.

4) But we do have some idea of how the proposed settlement will affect us, because DFG has already begun to implement modified dredge regulations as they apply to the waterways within the Klamath National Forest.

5) According to the modified regulations which are now being sent out by DFG, the Klamath, Scott and upper Salmon rivers have been reduced to a dredging season between 1 July through 15 September – and all dredging has been eliminated along the lower Salmon River, Indian Creek, Elk Creek, and other waterways. You can read the notice in the beginning of the DFG regulations.

6) All of this without a single notice to the thousands of people that will be negatively impacted by these changes!

The existing DFG dredging regulations are supported by a full Environmental Impact Statement (EIS) that was completed during the mid-1990’s. That entire process played out over the course of several years, with representatives from the mining community, environmentalists, organized rafting groups and many others taking an active roll in the process. The California Administrative Procedures Act (APA) requires State agencies to follow a very structured public process before it may adopt or change any regulations that could have a negative consequence upon communities within the State.

Through the course of this litigation, we are now going to find out if California law allows a State Agency to set aside all of the work that has been accomplished through a public process like this, and just give it all away to radical environmentalists in a (behind closed doors) court settlement – without so much as a single word to the thousands of people who will lose property rights. My best guess is that they do not have the authority to do that!

As this negative situation directly impacts upon the rights of our members, and we are already in litigation with the Karuk Tribe, we have agreed with other leaders within the greater mining community that The New 49’ers will take the lead in fighting these modified dredge regulations that have just been issued by DFG.

We have already retained James Buchal and some of his associates to represent us. James was the lead attorney who helped us defeat the Karuks earlier this year in the federal litigation. He also helped small-scale miners in southern Oregon defeat similar litigation by the very same radical environmentalists just within the past few months.

The good news is that our attorneys have already contacted the Court where this State litigation is pending, and the settlement agreement (which DFG is already implementing) has not yet been signed by the judge! Our attorneys have already alerted the judge in this case that miners will be negatively impacted and wish to be heard before any judgment or settlement is made final. While I have not seen anything in writing, I gather that the judge is going to allow us to make a presentation in a hearing scheduled for 20 December.

While we are still studying this case, and we will need to listen closely to the advice of the experts we have hired to help us, we will be pushing to have the settlement agreement withdrawn, and DFG’s modified dredge regulations withdrawn until conclusive proof is presented that:

1) Dredging activity under the pre-existing regulations is creating some meaningful amount of harm to the COHO Salmon.

2) That modified regulations will protect those specific concerns in such a way as to create the least amount of cost or damage to the user groups and communities which will be affected by the modified regulations.

3) That all persons who will be affected by regulatory changes are given a reasonable opportunity to become involved.

I could be wrong about this, but I believe DFG does not have the authority to impose further restrictions upon suction dredgers without going through the full APA process, unless they can demonstrate that emergency changes to the regulations are justified – by presenting conclusive evidence of harm to a protected species.

All the Karuks ever presented in the federal litigation were generalities. No specifics.

Generalities won’t do!

As long as the judge in the existing litigation will hear us, we will be pushing to set aside any changes to the pre-existing dredge regulations until DFG can demonstrate that an actual emergency does exist and can support the concern with specific information.

If it s too late in the existing litigation to be heard, we will need to file a lawsuit of our own against DFG for violating the Administrative Procedures Act and the California Environmental Quality Act. Both of these important laws require DFG to include us in any process that will affect our business. We have not been included!

If it is not already on the books (and it ought to be), it is time to get some clear case law published that State agencies have no authority to write off the whole public trust by selling out the rights of others to radical extremists in a court settlement! What good does it do to go through the whole public process, if attorneys can later go behind closed doors and decide to give it all away in a court settlement?

I hope you guys agree with me in this plan, because it is going to cost money that we do not have in the bank, yet.

Fortunately, we all stepped up to the plate and we were able to pay off all our earlier legal expenses within a short period of time. I am very thankful for that, because now we have earned some credibility with the specialists who give us support when we need it. It was because of that credit that we have been able to react so quickly in this case. We have our foot in the door because the settlement agreement between DFG and the Karuks has not been signed off by the judge yet.

By the way, we also have found out that the Karuks have no federally-recognized fishing rights. Yet DFG has a policy of allowing them to net salmon out of the river all they want, without any kind of fishing license. The Karuk’s are netting Salmon out of the river and killing them at the very same time the COHO salmon they wish to protect is migrating upstream to lay its eggs. So while DFG has made a settlement behind closed doors to curtail the suction dredging activity (not a single recorded case of a dredger ever harming a COHO salmon), they continue a policy of allowing Karuks to net out as many salmon as the want — even though it is directly against the law!

Does this make you guys as mad as it makes me? I agree with several of the forum posts that it is time for the miners to take an offensive stand against our adversaries. This looks like a good place to start!

For our part, winning this battle is mostly going to be about raising money to pay the specialists on our side. So, once again, I am putting out the call for you guys to please raise at least several thousand dollars as quickly as possible. We need to get ahead of the curve on this one!

I especially want to thank Harry Lipca who always seems to be one of the first in our industry to detect potential problems coming our way.

Also, 49’er Mike who has worked tirelessly on our behalf since this problem has surfaced. Mike is one of the best critical managers that I know. We are really lucky to have him on our team!

More soon, as the news develops.

Dave Mack

 
Dave Mack

“Here is some further explaination of the Karuk Tribe Lawsuit against the California DFG to change dredging regulations…”

Hello Everyone,

Here is a short update on the progress of the Karuk lawsuit against the California Department of Fish & Game (DFG):

We have now created a special page for this ongoing situation on our web site. The Karuk complaint against DFG is now up there. I’m sorry that the quality of our copy is not very good.

Under the New 49’er banner, our attorneys filed 2 briefs in the case this past Friday, 16 December. The primary brief is our Motion to Intervene in the litigation.

As I explained last week, we understood that DFG and the Karuks had already worked out a settlement to resolve this litigation — even though they refused to give us a copy.

There was a hearing scheduled this Tuesday (20 December) whereby I believe the plan was to try and get Judge Sabraw to formally endorse the settlement and thereby end the litigation. Our attorneys were present at the hearing pressing for our right to become involved, since it is actually our mining rights on the table. They also pressed the judge to not endorse the settlement between DFG and the Karuks.

Because of our pending Motion to Intervene, Judge Sabraw chose to not adopt the proposed settlement. Instead, she scheduled January 26, 2006 to hear our Intervention Motion and also to hold a hearing on the proposed settlement/joint stipulation for entry of judgment. We have until January 10, 2006 to file an Opposition to the Settlement. Our attorneys are already working on it.

We got in by the skin of out teeth on this one, you guys; just made it! Incredible how fast we organized to get competent attorneys representing our interests in this situation! We should acknowledge ourselves for doing good so far in this. But it is not over yet!

Please keep thinking up ideas on legal fund-raising, because we are running up a pretty big tab!! We don’t have any other choice!

I hope to post a copy of the Settlement Agreement between DFG and the Karuks real soon. I’m still waiting to receive a copy.

Thanks a lot for being there you guys!!

Keep your chins up,

Dave Mack

 

 
Dave Mack

“Here is some further explaination of the Karuk Tribe Lawsuit against the California DFG to change dredging regulations…”

Hello everyone,

This past week was a busy one concerning the Karuk litigation against the Department of Fish & Game (DFG).

On very short notice, we got the word out last weekend that the Siskiyou County Supervisors would vote Tuesday morning (3 January) on a Resolution speaking out against the way DFG and the Karuks have settled the litigation behind closed doors (deciding upon further restrictions to prospectors). Timing required the Resolution to be taken up without delay; so that if it were passed, the Resolution could be included within the court filings that we will submit this next week. We feel it strengthens our position to have a County government providing the Court with a formal condemnation of this solution that the Karuks and DFG have come up with.

I was impressed and relieved that so many prospectors turned up for the Supervisor’s meeting in Yreka on Tuesday, and I’m sure the Supervisors were also impressed. Some came from hundreds of miles away. Quite a few prospectors from Oregon came down to give us support. As a result, the Supervisor’s hearing room was packed, with prospectors trailing out into the hallway.

Ultimately, the Supervisors unanimously passed a Resolution demanding that DFG follow the correct due-process in making any changes to the suction dredge regulations. They authorized Marcia Armstrong, who is the Chair-person for the Supervisors, to encourage the Superior Court Judge (in the litigation) to not endorse the Settlement Agreement between the Karuk’s and DFG and Order DFG to follow the public process as it is supposed to do. The Resolution also authorized Ms. Armstrong to contact our State Lawmakers and the Governor to request their assistance in getting DFG to follow due process.

From the Supervisor’s meeting, 49’er Mike and I spent two long days traveling to and from Sacramento to meet with one of the attorneys that is representing DFG in the ongoing litigation. Through earlier discussion with our own attorneys, DFG had agreed to allow us access to the documents concerning suction dredging, other than what they consider as privileged and exempt from discovery.

When we arrived at the Resources Department in Sacramento, they had already arranged a room where Mike and I could review the documents, and we were met by around 10 full file boxes of material. Big job!! Mike started at one end, I started at the other, and we met somewhere in the middle. We ended up taking copies of just under 500 pages. This was all copied again for our own files, and then we forwarded everything we received over to our attorneys.

While doing discovery in Sacramento, we were shocked in two ways:

1) The attorney representing DFG told us that the new restrictions to suction dredging are not being adopted pursuant to any of the emergency provisions contained within the California Environmental Quality Act (CEQA) (which would require some formal biological justification). He told us that the regulatory changes are simply being adopted pursuant to a Stipulated Agreement with the Karuk Tribe of California in the ongoing litigation. Just that; nothing more! In other words, DFG believes it has the authority to completely shortcut the full CEQA process by changing our regulations behind closed doors in a quiet settlement with the Karuks. Wow!!

We should all start asking ourselves why anyone should bother going through the whole public process in the first place, if a State agency can simply trade it all off behind closed doors with an extremist group that files a lawsuit?

2) Then the attorney representing DFG told Mike and I that because of the ongoing litigation, most recent documents concerning suction dredging in the DFG files would be withheld from our view under some kind of expanded attorney-client privilege. Therefore, they are refusing to make any of the biological information available to us that supports the reasons why they have restricted dredging seasons or eliminated the activity altogether on some waterways!

Can you believe that?

The California Environmental Quality Act (CEQA) and the California Administrative Procedures Act (APA) require State agencies to adopt or modify regulations through a fair and open process, whereby everyone who is interested in the outcome may participate in the process, and whereby the agency is required by law to carefully consider all relevant material brought forward by the public and finally adopt regulations which resolve perceived problems in such a manner that creates the least amount of difficulty upon those persons who will be affected by the regulations. The process is especially designed to prevent extremist groups from hijacking the system. The documents in the DFG files clearly show the CEQA process was followed when our suction dredge regulations were adopted in 1994. The extremist groups were present. But their concerns were weighed against ours, and final decisions were based upon science which was available for everyone to see.

For lack of being able to come up with a more accurate characterization, I am referring to this present situation as a reverse-CEQA. Here, we have DFG and the Karuk Tribe secretly going behind closed doors and working out how they are going to modify our suction dredge regulations. And now, they are refusing to give us any of the biological information (if it even exists) that they have used to justify the modifications! This is exactly what CEQA was meant to prevent; a case where an extremist group has completely hijacked the system!

Our attorneys are working on it. Our briefing papers to the Court are due in on this upcoming Tuesday (10 January). Then I suspect both DFG and the Karuks will respond with their own briefs. Then we will probably reply.

It is going to be interesting to see how both the Karuks and DFG will try to convince the Court that the miners have no right to intervene in the litigation. Stay tuned, because we will be posting the briefs as soon as we have them!

Meanwhile, once again, I am putting out a request for legal donations. To date, we have brought in around $3,000 since this thing started. I want to express my sincere thanks to everyone who has contributed!

The bills for December legal work will be arriving at any time. My guess is that we will need to raise more money just to pay those. Our attorneys did a lot of work for us last month! This month’s work by our attorneys is really going to run the costs up, because of the exchange of briefs just starting this week, and because of the Court hearing on the 26th.

You guys know that gulping feeling you get when you are spending more money than you have? That’s the way I am starting to feel!

The law is on our side in this matter. Winning is mainly going to be about raising money to pay the specialists on our side to make good presentations to the persons who will ultimately decide the outcome.

You know, if we could just get a $10 donation from every person signed up on this forum, we would be in great shape at the moment!

Thanks for whatever you can do.

Dave Mack

 

 
Dave Mack

“Here is some further explaination of the Karuk Tribe Lawsuit against the California DFG to change dredging regulations…”

(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

 

 
Dave Mack

“Here is some further explaination of the Karuk Tribe Lawsuit against the California DFG to change dredging regulations…”

(Forum post dated 29 January)

Hello Everyone,

The next round of briefs have been filed in the Karuk’s lawsuit against the California Department of Fish & Game (DFG). The key documents can be located on the special page we have created for this litigation. We have not put all of the documents up there, because there are just too many. A lot of effort is going into this litigation from all sides! While you guys are invited and encouraged to read the briefs for yourself, here is my own short summary about what is happening:

There are two important issues to be decided in the case at the present time. I understand both of these motions will be addressed by the Court during the upcoming hearing scheduled for 9 February in Alameda Superior Court.

1) Under The New 49’er banner, we have motioned to Intervene in the litigation. PLP has also submitted a similar motion to Intervene. Our position on this is that the Miners are actually the Real Parties in Interest, since it is our regulations that will potentially affected by the litigation.

In opposition to our Motion to Intervene, the Karuks have argued that we don’t really have any property rights because we are just a bunch of recreationalists with no rights under the mining laws. DFG has argued that even if we do have a property interest in the mining claims, we do not have any property interest in the annual permits which California issues to dredgers. Therefore, DFG has argued that we should not be allowed any standing in the ongoing litigation.

I believe our attorneys have done an excellent job presenting our argument that since modified regulations will reduce or eliminate access to our mining properties, and the Administrative Procedures Act (APA) of California forbids DFG to modify our regulations without allowing us an opportunity to be heard, and the yearly permits directly affect how me may access our property, that we certainly do have a place in this litigation.

2) We have also submitted a motion for the judge to reject the Stipulation which has been submitted to the Court by DFG and the Karuks to end the litigation. You guys will recall that this Stipulation creates an injunction preventing DFG from issuing dredge permits for the Main Stem of the Salmon River, Elk Creek, Indian Creek and other waterways. The injunction also reduces the dredging season on the Klamath and Scott Rivers to 1 July through 15 September. These are very substantial changes in our suction dredge regulations. DFG began implementing them in November of 2005 without so much as a single notice to the mining community or the many other people that will be adversely affected.

In opposition to our motion, the Karuks have submitted a very substantial volume of material to the Court, including Declarations from three fish biologists. Most of the material presented basically rehashes the same old arguments about dredging up the fish eggs and swallowing up juvenile salmonids. There is no acknowledgement by the Karuks that existing regulations have already addressed these very same issues. They have not provided any factual information to show how existing regulations do not provide adequate protection for the Coho salmon, or any factual information to demonstrate that a single fish has ever been harmed by a suction dredger. The Karuk’s position is that suction dredging should be presumed to be harmful unless proven otherwise (How is it even possible to prove “no harm” from any human activity?).

DFG’s opposition to our motion is based upon an argument that since their Stipulated Agreement was created during ongoing litigation, they really have not made any changes to our regulations at all. Therefore, they argue that they are not bound by the provisions of APA and the California Environmental Protection Act (CEQA) which require public participation when regulations are changed, even under emergency conditions. Interestingly, DFG’s position also is that they have done everything right in the way they have managed the suction dredge regulations during the past, including affording adequate protection to the Coho salmon. They make no claims that existing regulations do not protect the Coho. Their position is that the Stipulated Agreement simply offers additional protection because of the unproven arguments brought forward by the Karuks in the litigation. DFG argues that it is well within the authority of the Court to Order an injunction that reduces our dredging seasons. Never mind that there has yet to be any contested hearing or public debate to determine if any additional protection is even necessary!

In turn, our attorneys have argued that no matter what kind of spin they want to put on it, the fact is that the written regulations presently being issued by DFG have been changed to reduce our dredging seasons. The changes are very substantial. The fact that DFG is arguing that the earlier regulations were already in compliance with CEQA and were providing adequate protection to fish does not go well with a decision to shorten our mining seasons. We have rebutted the Declarations written by Karuk biologists with Declarations from other biologists who actually have field experience along the waterways that are being fought over in this litigation. We have also presented a Declaration which outlines just how substantial these regulatory changes are and how much damage will be caused to Miners and others.

Our main argument is that the Administrative Process in California was enacted to mandate State Agencies (DFG) to allow all interested parties to participate, and to mandate that State agencies weigh and balance all of the relevant factors to create reasonable regulations that resolve perceived problems in such a manner as to impose the least amount of restrictions upon productive activity. We argue that it is wrong for the Court to allow DFG to skirt around its important obligations to the public by sneaking behind closed doors with anti-industry groups to impose more restrictive regulations by Court Order — even without so much as a contested hearing.

As the court hearing is postponed until 9 February, I gather that DFG and the Karuks will be allowed one more opportunity to rebut our arguments in writing to the Court. I assume there will also be some oral arguments during the hearing.

We should keep our hopes up that this goes our way. If it doesn’t, we are already in early planning for the appeal. What good is the full public administrative process if a State agency can later go behind closed doors with an anti-industry group and modify industry regulations without having to justify the changes to the industry or the affected public?

We are also in the beginning stages of organizing a class action lawsuit to force the State of California to compensate all affected mining claim and private property owners for the reduced value of our/their holdings. The State cannot have it both ways. If the Court agrees that it is so important to stop or reduce the mining activity on these properties for the public good, then the State should be prepared to financially compensate property owners for our losses.

We are also exploring the possibility of filing a counter claim against the State of California for allowing the Karuks to dip net and kill the very same fish that they are trying to protect from us. Our research to date appears to show that the Karuk’s fishing practices should not be allowed under the very same laws they are using to try and eliminate the miners. This is not about retaliation. There just comes a point where we have to be looking at all of the potential negative impacts upon these fish. If conditions are so critical that serious consideration is being given to eliminating or reducing our mining seasons, then why are the Karuks being allowed to kill as many of the fish as they want out of the river? Where is the CEQA document that supports that decision by the State? I gather that other industry groups in Siskiyou County, who are also being pressured to make substantial and costly concessions, are asking the very same question.

If you possibly can, please be present at the hearing in Alameda County on February 9th. It is important that Miners are present. I know it is a long way away from our territory. Still, we need to be there in force if we can.

Once more, I am asking for another $10 donation, from anyone who can afford it, to help support our legal fund. It is vital that we finish paying attorney fees for December before we receive the January billing. Although we are close, we have not accomplished that, yet.

You guys should know that I am experiencing more stress about paying our lawyers, than I am about the litigation. The lawyers are doing a great job. We are fighting this battle as well as it can be done. The rest is up to fate. It is a good feeling to know you have done everything that you can to solve a problem!

My concern is over our future capability to do the same thing. We must keep up with our attorney bills so that we do not get overwhelmed by the process. All I can do is yell the charge. You guys are the force which will allow our side to win this battle. Now is the time to charge forward!

Thank you for whatever you can do!

Sincerely,

Dave Mack

 

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