Dave Mack

“Here is a short summary of  ongoing legal affairs”


Please make a donation to The New 49’er Legal Fund.


By Dave McCracken

California recently passed a new water bill (SB 637) which, I believe, goes into affect in January. It says there will be no use of motors to excavate or process material within 100 yards of the active waterway. If allowed to stand, this reduces us down to hand sluices, gold pans, underwater crevicing (with or without hookah systems) and perhaps gravity water systems where possible.

We will be working out a strategy with our attorney to challenge the new law.  Since we have not really been getting any meaningful relief in State court, I’ll likely be pushing for a federal challenge.

We are also looking into what is required to submit an application to the Army Corps for a water permit that covers all the properties we control. Such a permit should allow us the use motors to process and even suction dredges, again.

All of the ongoing litigation in State court is in kind of a holding pattern. The next hearing in San Bernardino happens in January.

We are still waiting for the 4th Appellate Court to respond to our Appeal of San Bernardino Superior Court’s refusal to grant us relief from the unconstitutional actions of State officials. We expect this will likely go our way.

The California Supreme Court’s review of the Rinehart case seems to be in a holding pattern. There is more than a reasonable chance this will turn out in our favor.

The California Supreme Court or 4th Appellate Court may hand us a win(s) that will help us overcome the new water bill in California. Any reasonable federal judge would easily see that the State has a long, consistent history (scheme) of trying to eliminate small-scale mining on the public lands. The new water bill is just another example that proves a long period of misconduct.

Two mining associations in Oregon have taken the lead to file a legal challenge in federal court to overcome Oregon’s suction dredge moratorium. The New 49’er Legal Fund has offered to contribute as needed. They have a very strong case.

The Siskiyou County District attorney has decided to prosecute Derek Eimer and Dyton Gilliland for dredging in California without a permit. Both are New 49’er members who were dredging in the wake of San Bernardino Superior Court’s Order that California’s dredge moratorium was not enforceable. The Legal Fund is supporting their defense. I’ll post the briefs as soon as they are filed. We see this as an important test case to determine if others will be prosecuted or equipment will just be returned.

If any of this disappoints you, I advise you to not let your spirits get down too much. We are going to win in the end. All we need is to watch the current national election cycle to see that America is finally starting to wake up.

I can see a lot of members turning towards underwater sniping supported by motorized hookah along our very extensive properties, especially with the use of these newer pulse induction metal detectors that look right past hot rocks as if they are not even present. I was given a demonstration by Whites Detectors about a month ago and was surprised at the capability and the lower costs.

The Legal Fund needs money!! We are giving away 2 ounces of beautiful gold nuggets and a bunch of other goodies in less than 2 weeks. The new Paypal link makes it very easy to contribute. Please check it out right here:

Legal Fund Raiser

Thanks for anything you guys can do to help!

Dave Mack

“Now we are Appealing to California’s Forth Appellate Court to reverse the recent denial by the San Bernardino Court to Grant Suction Dredgers Relief from the Unconstitutional Actions of State Officials.”

Please make a donation to our Legal Fund.

We have switched gears into appealing San Bernardino’s recent Ruling to deny any meaningful relief to suction dredgers even after the court has Ruled and Ordered that California’s suction dredge moratorium is unconstitutional — which State authorities continue to enforce (by seizing dredging equipment they find on the river).

As you may recall, our initial Motion for a Statewide Injunction to prohibit California from enforcing the unconstitutional moratorium and return us to the earlier set of regulations that were legal was recently denied by the Superior Court of San Bernardino. We believe that Ruling was flawed, and have filed an appeal with California’s Forth Appellate Court to get our motion approved.
There is a legal provision in California which requires appeals of denied injunctions to be expedited when ongoing circumstances are causing irreparable harm to people who are 70 years or older. A bunch of our 70+ year old members have come forward with Declarations in support of this appeal.

You can find the Appeal, along with supporting Declarations, at the bottom of this page.

Motion for Summary Reversal

Declaration of Rip Ripple

Declaration of Charles Montgomery

Declaration of William Christensen

Declaration of Ray Derrek

Declaration of George Kendall

Declaration of Judy Shirey

Declaration of Myrna Karns


State’s Counter Motion for Dismissal

State’s Oppositian to Motion for Summary Reversal


Opposition to Summary Reversal by the Center For Biological Diversity

August 2015

Two Ounces of New 49’er Gold Nuggets!

Gold Nuggets

Your contribution to The New 49’ers Legal Fund is tax-deductible.
There will be 25 prizes in all:
  • Grand Prize: 1-ounce of New 49’er Gold Nuggets
  • Four ¼-ounce Bags of Klamath New 49’er Gold Nuggets
  • Ten 10th-ounce American Gold Eagles
  • Ten 1-ounce American Silver Eagles

Gold and Silver Eagles

The drawing will take place at the close of business at our headquarters in Happy Camp on Friday, 30 October. 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.

Purchase Tickets for the next legal Fund-raiser Drawing

  $10.00 each – Enter the number of tickets you wish to purchase into the quantity field then click “Update” before checking out.Our office will automatically generate a ticket in your name for every $10 legal contribution we receive ($100 would generate 10 tickets, etc). There is no limit to the size or frequency of your contributions, or to the number of prizes you can win. Your contribution to The New 49’er Legal Fund is tax-deductible.

Legal contributions can also be arranged by calling (530) 493-2012, by mailing to The New 49′ers Legal Fund, P.O. Box 47, Happy Camp, CA 96039, or online by clicking Here.

Dave Mack

“Motion to the Superior Court of San Bernardino to Allow Suction Dredging on New 49’er-controlled Properties Under the 2012 Regulations until the Regulations can be Updated in a Way That Does Not Break the Law.”

Please make a donation to our Legal Fund.


“Sometimes, anything is better than nothing!”

Update as of the 4th of July, 2015:

Judge Ochoa of the Superior Court of San Bernardino recently 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 the Department of Fish & Wildlife (DFW) from issuing any suction dredge permits.  His Order and Ruling declared that the State’s moratorium preventing the issuance of permits is unconstitutional, illegal and unenforceable.

This was a huge win for our industry!

The problem is that the State is continuing to enforce the unlawful moratorium! 

First we attempted to motion the Siskiyou County Superior Court to order State authorities to stop harassing New 49’er members who were dredging along the Klamath River.  But we were prevented from bringing  that motion because the California Judicial Council has decided that all suction dredging-related cases will be consolidated in the Superior Court of San Bernardino.

Because there are multiple dredging cases being heard in San Bernardino, with multiple individuals and other mining associations having a stake in the outcome, The New 49’ers did not believe it would be acceptable to the rest of the industry if we initially filed a motion in San Bernardino for relief only on behalf of our own members and property holdings.  Therefore, we teamed up with the others in the ongoing litigation to file a joint motion for statewide relief.  Please go to this page for more background explanation, along with the very substantial attempt we made to try and get all California dredgers back into the water this season.

However, on the 23rd of June, Judge Ochoa denied our motion for statewide relief. If you want to get a good feel for how definite his denial was, you can read the hearing transcript right here.  Perhaps we tried to bite off more than the court was willing to allow.

Now that we have made our absolute best effort to bring about relief for the entire state and failed, we have received consent from all parties within the litigation to motion the court for much narrower relief on behalf of New 49’er members on New 49’er properties in Siskiyou County.  This was what we originally intended to do in Siskiyou County several months ago.  Our motion for a Temporary Restraining Order will be filed in San Bernardino on 6 July; and we hope it will be decided this coming Thursday, 9 July.  To save on travel costs, we have requested the hearing to take place by telephone conference.

Our key moving documents, proposed Order and supporting Declarations can be found just below.  You will see that we are challenging the ongoing moratorium under an entirely different legal theory which does not rely upon the Third Appellate Rinehart Decision.  My understanding is that the San Bernardino Court was not willing to grant statewide relief because of the possibility that the Rinehart Decision could be overturned by the California Supreme Court.

While we strenuously believe the 2012 regulations are overly restrictive, and we will continue the ongoing effort to obtain much more reasonable regulations, we have already completely lost 5+ dredging seasons because of the unlawful moratorium; and we believe it is better to get people back in the water while we continue the fight. This is a beginning.

Said another way, since the State certified that dredging under the 2012 regulations will not harm fish, we should at least be able to dredge within those regulations while we continue to challenge them as overly restrictive.  In the event that we succeed, there is nothing preventing others from seeking similar relief:

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.”

Please make a donation to our Legal Fund.

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



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 legal 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,
New 49’er Gold Prospecting Association
27 Davis Road P.O. Box 47, Happy Camp, California 96039
(530) 493-2012

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”

Please make a donation to our Legal Fund.

Dave Mack

“The California Supreme Court has consented to Review The Third Appellate’s Decision on Rinehart. Here is some background information and links to pertinent briefs regarding this case”

Please make a donation to our Legal Fund.


We recently announced that the California Third Appellate Court refused the State’s request to reconsider their landmark Decision which confirmed the rights of prospectors to be free of unreasonable regulation when mining on the public lands. The Third Appellate also consented to our requests to publish their Decision so we could rely upon it in other ongoing and future litigation.

In my own opinion, the published Rinehart Decision is the most important legal development in support of mining in America during the modern age. It is the turning point which should be the foundation of future mining in America.

Since being denied by the Third Appellate for reconsideration, the State of California has submitted a Petition to the California Supreme Court to review the Rinehart Decision.
You guys can make your own evaluations, but I am seeing some deliberate misrepresentation in the State’s brief. They make it sound as though, once the outstanding issues are mitigated, we will be allowed to continue suction dredging — when the nature of the issues they have identified are such that they can never be resolved. Not to mention that the State’s moratorium on suction dredging is permanent!

Note:  We will file our answer shortly

March  2015


ATX1     ATX2

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!

AT Gold1     AT Gold 2

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!

Gold Eagles

We will also be giving away twenty tenth-ounce American Gold Eagles!

Your contribution to The New 49’ers Legal Fund is tax-deductible.

There will be 22 prizes in all:

Grand Prize: Garrett ATX Metal Detector

Second Prize: Garrett AT Gold Detector

Twenty 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.

Purchase Tickets for the next legal Fund-raiser Drawing

  $10.00 each – Enter the number of tickets you wish to purchase into the quantity field then click “Update” before checking out.

Our office will automatically generate a ticket in your name for every $10 legal contribution we receive ($100 would generate 10 tickets, etc). There is no limit to the size or frequency of your contributions, or to the number of prizes you can win. Your contribution to The New 49’er Legal Fund is tax-deductible.

Legal contributions can also be arranged by calling (530) 493-2012, by mailing to The New 49′ers Legal Fund, P.O. Box 47, Happy Camp, CA 96039, or online by clicking Here.




Dave Mack

Legal update for California ( Fri Jun 27 2014 )

By Dave McCracken



I just returned to Happy Camp from 2 days of Mandatory Settlement Discussions in San Bernardino for the several ongoing cases in front of Superior Court Judge Ochoa. Before I get into this, I need to point out that the discussions were confidential, so I can only discuss this in general terms.

As an important part of this, in case you didn’t know, because of scheduling conflicts, oral arguments in Brandon Rinehart’s appeal to the Third Appellate District have been pushed back to September. In that case, we are petitioning the Court to decide that federal law prevents the State of California from prohibiting suction dredging on the public lands. We are arguing that the law is already well-decided on this issue. One of the State’s primary arguments is that they are only prohibiting suction dredging, and we are still allowed to use our gold pans. Our position is that our mining claims are only valid in the first place because we have made viable gold discoveries at the bottom of waterways which can only be reached through suction dredging. Preventing us from extracting the gold deposits we have discovered is basically a prohibition on the use of any effective method of mining that is available to us. As long as we get a fair hearing, and it appears as though we will, we are pretty confident that we will win the federal preemption case in the Third Appellate Court. The case law we are relying upon basically says that while the State has the authority to impose “reasonable regulations” upon us, they cannot prohibit mining altogether.

This brings up the subject of what constitutes “reasonable regulation” of suction dredging in California. While maybe everyone does not agree, I believe the majority of us believe that the regulations we worked so hard for in 1994 were reasonable, except that the Department of Fish & Wildlife (DFW) decided afterward that the Special Permit process was no longer available to us.

Please allow me to put this in perspective: A statewide suction dredge permit scheme is good for our industry. Otherwise, each of us would need to submit separate dredge applications for each different place we want to work. The process of obtaining those permits could be quite lengthy, burdensome and expensive. For example, the previous judge that was presiding over most of this litigation was strongly suggesting that every single suction dredger should be required to do a full Environmental Impact Report (EIR), a requirement which certainly would have been the end of our industry.

Section 5653 of the DFW Code allows the Department to issue dredging permits if there is not going to be “harm” to fish. “Harm” in this respect means a deleterious impact upon an entire species of fish. Rather than require each individual dredger to complete an EIR, the State has developed a statewide EIR with regulations which allow limited suction dredging along numerous waterways at certain times of the year. Since the statewide approach requires DFW to make general assumptions concerning “harm,” the Department believes it must err on the side of caution. This in itself is not unreasonable. But in the exercise of caution, the regulations are sure to restrict or prohibit suction dredging in areas where, if looked at more closely, reasonable people could agree that some suction dredging could take place without endangering a species. This is where the Special Permit process came in during 1994 and before. Said another way, without a Special Permit process in place, suction dredging would be completely prohibited in all areas that are not allowed by the statewide regulations. We believe this would rise to a prohibition in some portions of the state which would likely be preempted by federal law. The recently-adopted 2012 statewide regulations do not allow for a Special Permit Process. This is just one thing (of many) that must be resolved.

You guys probably recall that Brandon Rinehart was cited several years ago for suction dredging without a permit. Our attorney, James Buchal, took Brandon’s case. More or less, our defense is that the state has over-reached its authority by first adopting Section 5653 of the DFW Code which prohibits people from operating suction dredges within California’s waterways without first obtaining a permit, and then passing another law which prohibits the state from issuing any suction dredge permits. If Brandon wins this argument in the Third Appellate, it basically means that we can all resume suction dredging without much worry over being prosecuted for not having a permit. I suspect this would prompt the legislature to cancel its moratorium and order DFW to immediately begin issuing dredging permits in conformance with the recently-adopted 2012 suction dredge regulations.

While permits under the 2012 regulations would be an improvement over our existing situation, I believe everyone within the industry would agree that they are not even close to being “reasonable.” At the same time, anti-mining activists are arguing quite strenuously that the 2012 regulations are not restrictive enough. Therefore a big part of the active litigation in Judge Ochoa’s court is over the disagreement on what constitutes “reasonable regulation” of suction dredging in California.

I have read some of the comments made by others in the last few days which are pushing the notion that Judge Ochoa’s Order for all the parties in the active litigation to participate in mandatory settlement discussions is a bad thing, especially since they will not be continued until early September. That means we will not be dredging this season. The reason for the delay, as I understand it, is the very same scheduling conflicts that delayed Brandon’s case in the Third Appellate. It is basically the same group of attorneys in both cases. People take vacations during the summer months. Yes; I know that does not include suction dredgers. But, since we are not going to resolve this without the attorneys, it is a waste of time to make a big deal over things we cannot change. We are so late in the season already, under the new regulations, there was not going to be much time for anyone to get in the water this summer, anyway. Perhaps it’s better that we dwell on the good side of this.

The good side? This is where others might disagree with my perspective. Civilized disagreement and debate amongst us is a good thing. We do this all the time within the industry. It increases all of our awareness on the issues we face and improves our ability to deal with the obstacles we must overcome. When I look back at how much better we are today at managing legal challenges than we were in the 90’s, I am amazed we actually overcame the very strong push to eliminate suction dredging and came up with a set of regulations that supported our industry for 15 years. We were very divided in our views back in 1994. But we did manage to pull together a united front on the important matters that we had to deal with. I am confident we will do that again this time.

Now to my perspective: Since we expect that the Third Appellate is going to overturn the Legislature’s moratorium on suction dredging perhaps sometime around the end of this year, the next big matter to resolve is what constitutes “reasonable regulation” of suction dredging in California. That matter is in front of Judge Ochoa. I believe this is one of the main reasons he has ordered Mandatory Settlement discussions. The beginning of the process this past week involved all the parties and attorneys communicating our views and concerns to the judge on a personal basis. I believe the judge was trying to discover how far apart we are and assess the likelihood that he can bring us together in a negotiated settlement that everyone can live with. I believe he now has a good understanding of the issues we must resolve. Before we closed on the second day, he asked for a list of issues that each party would like to see changed in the 2012 regulations. After reviewing these with all the attorneys, he still had enough confidence to schedule two more days of settlement discussions in early September.

I know some people don’t like this settlement idea. But we should consider the alternative, which is to litigate each and every one of the issues that we do or don’t like, and that anti-mining activists don’t like – all in front of the very same judge. This would involve tens of thousands of pages of reports and comments, expert witness testimony from all sides, all which could take years of hearings, not to mention the costs. This is because many of the issues are scientific and complex. All of this, only to have Judge Ochoa make the final determination in the end, anyway.

Therefore, I see his offer to try and resolve the issues through settlement discussions as an opportunity to shortcut a very timely and expensive process.

The 1994 regulations were not the result of litigation. They were the result of all the parties coming together in discussions, with a very capable negotiator finding the balance that we could all live with. That was not an easy thing to do! My initial impression of Judge Ochoa is that we are very lucky to have him there. I’m sure he is going to give everyone’s view a fair hearing. That is a lot more than we have received since we were shut down in 2009. It is a lot more that we might expect in today’s world.

Therefore, I am suggesting that we should not be too quick to decide mandatory settlement discussions are a bad thing. Without them, even if Brandon wins, we are likely to be stuck with the 2012 regulations until they are fully litigated, which could end us up in the very same place as a settlement degree before the start of next season.


The New 49’ers Legal Fund
27 Davis Road, Happy Camp, California 96039