Dave Mack's Gold 2011

 

Dave McCrackenNew 49’er Legal Fund-raiser!

There will be 25 prizes in all:
Grand Prize: 1-ounce of Gold
Four ¼-ounce Prizes
Twenty 1-Pennyweight Prizes

This is some of the gold which Dave Mack dredged from the Rogue River during the 2011 season. Dave has authorized our office to 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. The drawing will take place at our headquarters in Happy Camp on 9 March, 2012.

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

Make a Donation

 

 

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

www.goldgold.com

 
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:

 

Code of Federal Regulations

TITLE 36–PARKS, FORESTS, AND PUBLIC PROPERTY

CHAPTER II–FOREST SERVICE, DEPARTMENT OF AGRICULTURE

PART 228–MINERALS–Table of Contents

Subpart A–Locatable Minerals

Sec. 228.3 Definitions.

For the purposes of this part the following terms, respectively, shall mean: (a) Operations. All functions, work, and activities in connection with prospecting, exploration, development, mining or processing of mineral resources and all uses reasonably incident thereto, including roads and other means of access on lands subject to the regulations in this part, regardless of whether said operations take place on or off mining claims.
(b) Operator. A person conducting or proposing to conduct operations.
(c) Person. Any individual, partnership, corporation, association, or other legal entity.
(d) Mining claim. Any unpatented mining claim or unpatented millsite authorized by the United States mining laws of May 10, 1872, as amended (30 U.S.C. 22 et seq.).
(e) Authorized officer. The Forest Service officer to whom authority to review and approve operating plans has been delegated.

Sec. 228.4 Plan of operations–notice of intent–requirements.

(a) Except as provided in paragraph (a)(2) of this section, a notice of intention to operate is required from any person proposing to conduct operations which might cause disturbance of surface resources. Such notice of intention shall be submitted to the District Ranger having jurisdiction over the area in which the operations will be conducted. If the District Ranger determines that such operations will likely cause significant disturbance of surface resources, the operator shall submit a proposed plan of operations to the District Ranger.
(1) The requirements to submit a plan of operations shall not apply:
(i) To operations which will be limited to the use of vehicles on existing public roads or roads used and maintained for National Forest purposes,
(ii) To individuals desiring to search for and occasionally remove small mineral samples or specimens,
(iii) To prospecting and sampling which will not cause significant surface resource disturbance and will not involve removal of more than a reasonable amount of mineral deposit for analysis and study,
(iv) To marking and monumenting a mining claim and
(v) To subsurface operations which will not cause significant surface resource disturbance.
(2) A notice of intent need not be filed:
(i) Where a plan of operations is submitted for approval in lieu thereof,
(ii) For operations excepted in paragraph (a)(1) of this section from the requirement to file a plan of operations,
(iii) For operations which will not involve the use of mechanized earthmoving equipment such as bulldozers or backhoes and will not involve the cutting of trees. Each notice of intent to operate shall provide information sufficient to identify the area involved, the nature of the proposed operations, the route of access to the area of operations and the method of transport. If a notice of intent is filed, the District Ranger will, within 15 days of receipt thereof, notify the operator whether a plan of operations is required.

 

 

PART 228–MINERALS Subpart A–Locatable Minerals 0 1. The authority citation for part 228 continues to read as follows: Authority: 30 Stat. 35 and 36, as amended (16 U.S.C. 478, 551); 41 Stat. 437, as amended sec. 5102(d), 101 Stat. 1330-256 (30 U.S.C. 226); 61 Stat. 681, as amended (30 U.S.C. 601); 61 Stat. 914, as amended (30 U.S.C. 352); 69 Stat. 368, as amended (30 U.S.C. 611); and 94 Stat. 2400. 0 2. Amend Sec. 228.4 to revise paragraph (a) to read as follows:

Sec. 228.4 Notice of intent–plan of operations–requirements.

(a) Except as provided in paragraph (a)(1) of this section, a notice of intent to operate is required from any person proposing to conduct operations which might cause significant disturbance of surface resources. Such notice of intent to operate shall be submitted to the District Ranger having jurisdiction over the area in which the operations will be conducted. Each notice of intent to operate shall provide information sufficient to identify the area involved, the nature of the proposed operations, the route of access to the area of operations, and the method of transport.

(1) A notice of intent to operate is not required for: (i) Operations which will be limited to the use of vehicles on existing public roads or roads used and maintained for National Forest System purposes; (ii) Prospecting and sampling which will not cause significant surface resource disturbance and will not involve removal of more than a reasonable amount of mineral deposit for analysis and study which generally might include searching for and occasionally removing small mineral samples or specimens, gold panning, metal detecting, non- motorized hand sluicing, using battery operated dry washers, and collecting of mineral specimens using hand tools; (iii) Marking and monumenting a mining claim; (iv) Underground operations which will not cause significant surface resource disturbance; (v) Operations, which in their totality, will not cause surface resource disturbance which is substantially different than that caused by other users [[Page 32732]] of the National Forest System who are not required to obtain a Forest Service special use authorization,

contract, or other written authorization; (vi) Operations which will not involve the use of mechanized earthmoving equipment, such as bulldozers or backhoes, or the cutting of trees, unless those operations otherwise might cause a significant disturbance of surface resources; or (vii) Operations for which a proposed plan of operations is submitted for approval;

(2) The District Ranger will, within 15 days of receipt of a notice of intent to operate, notify the operator if approval of a plan of operations is required before the operations may begin.

(3) An operator shall submit a proposed plan of operations to the District Ranger having jurisdiction over the area in which operations will be conducted in lieu of a notice of intent to operate if the proposed operations will likely cause a significant disturbance of surface resources. An operator also shall submit a proposed plan of operations, or a proposed supplemental plan of operations consistent with Sec. 228.4(d), to the District Ranger having jurisdiction over the area in which operations are being conducted if those operations are causing a significant disturbance of surface resources but are not covered by a current approved plan of operations. The requirement to submit a plan of operations shall not apply to the operations listed in paragraphs (a)(1)(i) through (v). The requirement to submit a plan of operations also shall not apply to operations which will not involve the use of mechanized earthmoving equipment, such as bulldozers or backhoes, or the cutting of trees, unless those operations otherwise will likely cause a significant disturbance of surface resources.

(4) If the District Ranger determines that any operation is causing or will likely cause significant disturbance of surface resources, the District Ranger shall notify the operator that the operator must submit a proposed plan of operations for approval and that the operations can not be conducted until a plan of operations is approved. * * * * * Dated: May 31, 2005. David P. Tenny, Deputy Under Secretary, NRE. [FR Doc. 05-11138 Filed 6-3-05; 8:45 am] BILLING CODE 3410-11-P

 

 

FIRST QUARTER, MARCH 2011                            VOLUME 25, NUMBER 2
Dave Mack

By Dave McCracken General Manager

 

 

 

 

 

The California Department of Fish & Game (DFG) released its long-awaited Draft Environmental Impact Statement (EIR) and Proposed new Suction Dredging Regulations on 28 February 2011. These, along with other information, can be found at DFG’s web site. The Drafts have also been sent to each of California’s counties and to other locations. For more information where to view the material, you can make contact with Mark Stopher13, Environmental Program Manager, California Department of Fish and Game, 601 Locust Street, Redding, CA 96001: Voice 530 225-2275; Fax 530 225-2391; Cell 530 945-1344.

This has triggered a 60-day public comment period which will end on 29 April 2011. Written comments can be submitted to Mark Stopher, Department of Fish and Game, 601 Locust Street, Redding, CA 96001. Or they can be faxed or emailed: Fax: (530) 225-2391; Email: dfgsuctiondredge@dfg.ca.gov.

Five public hearings have also been set so that interested people can voice comments. The format of the public hearings will be Open House Workshop between 5 ‘ 6 p.m; Welcome and Opening Remarks at 6:00 p.m.; Highlights of the Draft EIR at 6:20 p.m.; and Public Comment Period beginning at 6:45 p.m. Here are the meeting places and dates:

Santa Clarita: Wednesday, March 23 at Residence Inn by Marriott, 25320 The Old Rd., Santa Clarita, California.

Fresno: Thursday, March 24 at the California Retired Teachers Association, 3930 East Saginaw Way, Fresno, California.

Sacramento: Tuesday, March 29 at the California EPA Headquarters Building, Byron Sher Auditorium, 1001 ‘ I Street, Sacramento, California.

Yreka: Wednesday, March 30 at the Yreka Community Center, 810 N. Oregon, Yreka, California.

Redding: Thursday, March 31 at the Shasta Senior Nutrition Program, 100 Mercy Oaks Drive, Redding, California.

Preliminary Analysis: As there is very little time to get the word out on this, I have only read through the new regulations once so far. But I can tell you that the proposed changes are very substantial!

One of the problems is that many or most of the proposed changes are in locations elsewhere in the State that I am not familiar with. It is impossible for me to comment correctly about areas of the State that I know little about. So I will contain this initial review to areas where The New 49’ers have mining properties in Siskiyou County. I am assuming and hoping that other prospecting organizations and individuals who are more familiar with other areas will be organizing comments from elsewhere in the State.

Here follows an initial review of how the proposed new dredging regulations would affect New 49’er members along properties which we manage:

1) The current schedule published by DFG does not have new regulations in place before the fall of 2011. So we should assume the new regulations will mainly affect our 2012 season and beyond.

2) DFG is proposing to issue only 4,000 annual suction dredge permits, on a first come, first served basis. We will need to address how this will affect prior existing rights to ongoing mining projects which were shut down during the 2009 season.

3) The proposed regulations allow suction dredging with a 4-inch nozzle intake on the Klamath, Scott and Salmon Rivers between 1 July and September 30.

4) An onsite inspection is required of anyone who would like to operate a larger nozzle than 4-inches. Up to 8-inches will be allowed on the Scott and Klamath Rivers (but not Salmon River) with onsite inspection. Earlier permit applications required an increased fee for onsite inspections. Since annual fees are not being changed in this process, pre-existing fees should be adjusted according to inflation.

5) The proposed regulations will eliminate dredging on our Indian Creek, Elk Creek and Thompson Creek properties, and not allow dredging within 500 feet of most side tributaries which enter the Klamath. This means no dredging on the Klamath River within 500 feet of Negro Creek on K-9; it means no dredging within 500 feet of O’Neal Creek on K-10; it means no dredging within 500 feet of Portugese Creek on K-14; it means no dredging within 500 feet of Thompson Creek on K-16; it means no dredging within 500 feet of Indian Creek on K-21; It means no dredging within 500 feet of either Grider Creek or Elk Creek on K-22; and it means no dredging within 500 feet of Coon Creek or Swillup Creek on K-25A. There may be other Club properties affected by this that I don’t see, yet.

6) An onsite inspection is required of anyone who would like to operate a motorized winch.

7) No dredging anywhere within 3 feet of the edge of the waterway at the time the dredging is taking place.

8) Pump intake screens must be of a mesh or hole-size no greater than 3/32″. This may require a smaller mesh-size to surround some existing pump intakes.

I have not had time yet to study the full text of the Draft EIR to determine how DFG is justifying all these added restrictions to our suction dredging regulations. But, since public hearings will begin on 23 March, I did not want to delay getting the word out to you guys while I take the time to critique the Draft EIR.

For those of you who are interested in this, I advise you to either go up on the Internet and study the drafts for yourself, or find out where you can get hold of one at a library near you (call Mark Stopher at the numbers listed above). You can also go up on our Internet Forum and watch the threads. We have about 4,000 people on there now, and I am sure there will be plenty of ongoing discussion about what we don’t like and what the talking points ought to be.

I have absolutely no input yet about how the proposed regulations will affect other areas outside of our own. The Proposal places a big hit on our properties. Having said that, it could have been worse; they could be proposing to eliminate dredging altogether!

I am not saying it is good. I am saying it could have been worse. Now it is our turn within the process to try and change the things in the Proposal that we do not

like.

You will hear more from me about this on talking points (for written comments) in our April Newsletter. That will not be in time for public hearings. But since the hearings are really just listening sessions to determine how mad the public is; I suggest you go down there and give them an angry earful! Then you can follow up in April with written comments after we have had an opportunity to analyze the positions DFG has assumed in the Draft EIR.

Other Types of Mining During 2011

Just in case you do not know, it is only suction dredging within California’s active waterways that remains in suspension until new dredging regulations are finally adopted. This does not have anything to do with the other types of prospecting or mining that we do in California. Unaffected prospecting activities include panning, sniping & vack-mining, sluicing & high-banking, booming, electronic prospecting and other types of prospecting that do not use a suction nozzle within an active stream, river or creek. It also does not affect our group weekend projects.

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

Please be advised that these other types of mining activity along New 49’er properties are subject to a strict set of Surface Mining Operational Guidelines.

As the suction dredging seasons in California have been suspended, we have identified some fantastic suction dredging opportunities for our members in Southern Oregon.

Oregon Proposal to Increase Dredging Permit Fees!

Now; here is something else that we need to fight:

Oregon State Senators Atkinson, Haas and Bates have just introduced Oregon Senate Bill (SB) 765, which would tax suction gold dredgers by charging an additional $50 annual fee for in-state dredgers and an additional whopping $2,500 fee for non-resident dredgers for each county where the prospector intends to dredge!

Under emergency status, this bill is now moving on fast-track through the Oregon legislative process. If passed, it is possible these unreasonable fees could be in affect for the upcoming season!

At this moment, the bill is sitting in the Oregon State Senate Committee on Judiciary (Contact: Annola.DeJoug@stat.or.us or 503 986-1750). We sent out an Action Alert to our entire Email Action List (about 40,000 prospectors) as soon as the bill landed in the Judiciary Committee.

Postal mail is no longer an effective way to send out Action Alerts, because it all takes so long. This bill could already be in another committee or in front of the full senate before you guys even read the hard-copy version of our newsletter.

If you are interested in getting on our Email Action List, you do so by clicking on the Free Internet Newsletter link at the bottom-left of our home page.

With the Action Alerts, and the coordinated work being done on numerous fronts, quite a lot has already been done to combat this very bad bill. But we will need to do more; because Oregon is being managed largely by liberal politicians that are beholden to environmentalists.

We are presently interviewing lobbyists to represent the interests of small-scale miners in Oregon.

Yes, I know; it is all supposed to be about creating jobs. Right? In a published statement by Senator Atkinson, he makes his intention clear that he wants to keep non-resident prospectors out of Oregon. What?

By the way, Senator Atkinson migrated to Oregon from California! How does that make you feel?

Our Legal Fund Needs Help, Again!

It is not all bad news: Three new pro-mining bills have been introduced in California. Senate Bill 657 by Senator Gaines changes the law to exclude suction dredging from the ongoing administrative process which is reviewed in the new Proposal outlined above, and allow dredging under the earlier regulations until 2014. There is also a pro-rated refund for those of us who got knocked out of our dredging permits during 2009.

Assembly Bill 566 (Galgiani) and Senate Bill 792 (Steinberg) are the same bills which require California to formally acknowledge mineral-rich areas and prevent other priorities from eliminating mining as the primary use.

When I told you in January that we had some legal/political issues on our radar screen, it was mainly because we knew the Draft EIR and Proposed Regulations were soon to be released in California. We were not also expecting to fight a 100-fold permit fee increase in Oregon; and we were not expecting that pro-mining bills would be introduced which require our support if we want them to pass!

Therefore, it is a good thing that we were out in front of ourselves pulling a new fund-raiser together.

Our existing drawing will be for three ounces of beautiful Rogue River gold that I personally mined last season. We could really use your help right now!

 

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

 

 


SECOND QUARTER, JUNE 2005 VOLUME 19, NUMBER 5

By Dave McCracken General Manager

 

We received our Notice of Intent back from the U.S. Forest Service Ranger in Fort Jones. He has determined that our dredging, sluicing (with or without motorized pumps) and panning activities will not create any significant surface disturbance on the Scott River or along the upper Salmon River. That includes our claims along the North Fork of the Salmon, and on the Main Stem down to the Nordheimer Campground.

Our limit is no more than 8 dredges per mile along our claims on the Scott and Salmon Rivers.

We have set aside several nice, shady areas for camping.

All of our normal operational guidelines apply.

Our claims-guides have already been modified to reflect the present situation, and they have also been changed on the web site.

This present situation is substantially improved over last year. As long as members operate within our rules and published guidelines, there is no need to send in your own Notice to the Ranger if you want to dredge or surface mine on our claims along the Klamath, Scott and upper Salmon Rivers, and along Indian, Thompson and Elk Creeks.

Master List of Mining Properties

I hope this makes you guys as happy as I am about this situation.

We are working on gaining back a similar operating program along the lower Salmon River (SA1 through SA-4) this season, but are not quite there yet. Stay tuned!

Karuk Litigation Nearly Finished

As many of you will already be aware, the Karuk Tribe of California has filed a lawsuit in federal court against the U.S. Forest Service (USFS), asking the judge to decide that the USFS does not have the authority to allow insignificant small-scale gold mining activity within the high-water marks of any waterway in the Klamath National Forest (KNF).

The KNF is where we hold most of our mining claims, and where most of our members prospect for gold. So our own interests are at risk. But because the points of law to be decided in this case are general by nature, the outcome is likely to affect all of the National Forests in America. There is a lot at stake here!

Because it is really the miners’ interests that are being fought over in this case, The New 49’ers filed a motion to intervene in the litigation several months ago, and our standing was approved by the judge. This is a good thing.

Even before we were granted standing in the litigation, the Karuks, USFS and the judge had already stipulated that this case would be decided by summary judgment prior to 1 July, 2005.

On schedule with that, the Karuks filed their motion for Summary Judgment on April 29. The Karuks are basically arguing that the USFS cannot allow any type of mineral activity within “riparian reserves” (within the high-water marks of any waterway in the forest), unless a full Operating Plan has been approved in advance – which would require years of environmental evaluation.

The New 49’ers filed our Opposition Brief on May 17th which mounts a very substantial argument why the Karuk’s position is flawed, and why miners have a right to access the public lands for the purpose of mineral exploration, which cannot be interfered with (by anyone) when our activity does not create a significant disturbance. We reinforced our position with several sworn Declarations which demonstrate that the arguments being made by the Karuks do not present an accurate presentation of the actual circumstances surrounding their claims in court:

1) A Declaration from Dennis Maria, who is the California Department of Fish & Game Biologist (now retired) that has personally overseen all of the small-scale mining activity in the KNF for many years. His Declaration states from personal knowledge that the suction dredge activity which the Karuks complain about does not create any significant negative impact upon the fishery resources.

2) A Declaration from Joseph Greene, who was a research biologist for 32 years with the Environmental Protection Agency (now retired). Mr. Greene dedicated his Declaration to answering the many questions raised by the Karuks in their complaint concerning the potential impacts from suction dredging and other small-scale mining activity. To accomplish this, Mr. Greene cited research from an extensive amount of source material he has accumulated from the many studies which have been completed on mining over the years.

3) A Declaration from myself about the nature of prospecting and small-scale mining on the National Forest. I explained that most prospectors today are using hand tools and portable vacuum cleaners, and that no one is using backhoes and bulldozers, as alleged in the Karuk’s complaint. I also gave a detailed account of the substantial number of meetings that have occurred in recent years between the USFS, Karuks and the miners so that we could work out any of their concerns. This, because the Karuks are

complaining that they have been completely left out of the process, which is simply not true.

The USFS filed its own opposition brief (opposing the Karuk position) on May 17th. Basically, the USFS is arguing that under the mineral laws, prospectors and miners have full right of access to the National Forest, and that the USFS has absolutely no authority to do anything about it as long as the mineral activity does not cause a significant surface disturbance.

I strongly suggest the USFS position is something every miner should read. There is probably nothing more informative today concerning the legal position that the USFS believes it is in with the management of mineral activity on the public lands.

The one good thing that is coming out as a result of this litigation is that the legal rolls and relationships between miners and the USFS are being put under a microscope and becoming much more clearly defined. Let’s hope that the judge reaffirms them, because the definitions having to do with this case are in our favor!

There is a substantial amount of clearly established law which makes it abundantly clear (at least to me) that, because the mineral laws convey an actual property interest upon prospectors, the USFS does not possess the authority to interfere with any mineral activity which does not create a significant impact upon surface resources in the National Forest. This has been brought out in both ours and the USFS Opposition briefs.

In that the Karuks are asking the federal judge to impose an authority upon the Forest Service where one does not exist as a matter of law, my hope is that the Karuk’s motion for Summary Judgment will fail. But, the decision is not up to me. The judge will let us all know what she decides sometime around the end of June.

Meanwhile, I would like to let you know that, with your help, we have done as well as we can to defend against the Karuk challenge. I want to thank our two attorneys, James Buchal and Dabney Eastham, who have worked tirelessly on our behalf. We are very lucky to have them on our side.

I also want to thank all of you who have so generously contributed to our legal fund. Without you, we would not be meeting our adversaries with everything we need to do our absolute best. As it is, we have not been lacking for the resources to meet this challenge.

I encourage you to read the Briefs and Declarations concerning this case if you have time. This will give you a good perception of how complex and how much work is involved with mounting a substantial legal defense in this day and age. The material is very educational! It will also give you a substantial understanding of the legal foundations which support prospecting and mining activity on the public lands, and the legal challenges which we are defending against these days.

I am always awe-inspired when important circumstances cause miners to pull ourselves together in a common cause, and I feel very honored to be part of it when it happens. The experience gives me the feeling of being part of something worthwhile and important in our time. And I sincerely thank you guys for allowing me to play a part in this.

I encourage everyone to pay close attention to how this comes out towards the end of this month. We will have news of the judge’s decision on our web site as soon as we get it. The girls in the office will be informed if you ant to call the office. And, we will publish the July newsletter and send it out as soon as we know what is happening.


Sincerely,

Dave Mack

 


SECOND QUARTER, MAY 2005 VOLUME 19, NUMBER 9

 

 

The Karuk litigation is an ongoing case where the Karuk Tribe of California has filed a lawsuit in federal court attempting to prevent the U.S. Forest Service (USFS) from approving or allowing mining (dredging, sluicing, panning, etc.) in-stream or near a watercourse (“Riparian Reserve”) in the Klamath National Forest without requiring a plan of operations, reclamation plan, and reclamation bond, preparing an environmental assessment or environmental impact statement reviewing the individual and cumulative impacts from proposed mining in Riparian Reserves, and going through an extensive consultation process with other federal agencies pursuant to the Endangered Species Act.

The New 49’ers filed a motion with the federal court to intervene in this litigation on the grounds that the miners need to be heard, since it is our rights that are being contested in the litigation. The judge has granted our intervention-status over strong objections voiced by the Karuks. So, we are now directly involved in the litigation.

However, even before our intervention status was approved, The Karuks and USFS signed a partial settlement agreement whereby the USFS has conceded that, by law, they cannot approve an Operating Plan within any area where a listed species (threatened or endangered) exists, without first going through an extensive consultation process with other federal agencies (can take years to complete). In the settlement, the USFS has agreed to not approve any more Operating Plans before going through consultation when it is required.

Existing 36 C.F.R. Part 228 mining regulations allow the District Ranger to use his or her own discretion, based upon the best advice of his or her staff and other experts, to decide what type of mining activity will likely cause a significant disturbance of surface resources. A Ranger’s determination of a significant disturbance requires a formal Operating Plan to be filed by the miner – which will now trigger the lengthy consultation process with other agencies.

Generally, District Rangers have determined that hand-mining and suction dredging activity conforming to state regulations do not rise to the level of a “significant disturbance.”

However, on April 29, the Karuks filed a Motion for Summary Judgment and Injunctive Relief asking Judge Saundra B. Armstrong in Oakland, to decide otherwise. The Karuk’s position is that without first going through a full consultation process, the USFS is not qualified to determine there will not be a “significant impact” upon any existing listed species. Therefore, they argue, the Judge should prohibit the USFS from allowing any type of mining activity in Riparian Reserves in the Klamath National Forest without requiring a plan of operations, reclamation plan, and reclamation bond, preparing an environmental assessment or environmental impact statement which reviews the individual and cumulative impacts from proposed mining in Riparian Reserves, and going through an extensive consultation process with other federal agencies pursuant to the Endangered Species Act.

In short, the Karuks are asking the judge to overturn existing Section 228 regulations concerning mining in the Klamath National Forest.

As the Karuks do not distinguish any difference in their summary judgment motion or other moving-papers in the lawsuit between hand mining (panning, etc.) from mechanized mining (bulldozers), we are presuming they are asking the judge to stop all forms of mining or prospecting activity in Riparian Reserves in the Klamath National Forest.

The hearing for the Karuk’s motion is currently set for 21 June of this year, and the judge has agreed to issue her decision before July 1. The New 49’ers are actively working on a response opposing the Karuk’s motion for summary judgment.

The decision on this motion will likely have an impact upon other national forests on the West Coast of the United States.

In view of the USFS concession concerning the requirement of consultation to support any Operating Plan, we do not feel very comfortable that it will mount an adequate defense to this latest motion, either. I think it is safe to say that much of the small-scale mining as we know it in America hangs in the balance on this one decision that will happen in just a few short weeks from now.

Naturally, these proceedings have caused different USFS land-managers to be uncertain how to administer small-scale mining programs. This slows down the process, or stops it altogether in some places.

I feel it is important to point out that the attack against mining is coming from organizations outside of government, that do not want to see miners in the National Forest anymore. The USFS is caught in the middle. Under the circumstances, there is no clear-cut correct answer to anything. So we need to patiently wait-out the system and keep our sights on the long-term. The mining law has always vindicated the rights of miners. It is not over until it is over! Let’s keep our chins up and be effective.

With a little luck, Judge Armstrong will decide in our favor and give the USFS some direction about how to exercise the discretion granted to them by Congress. That could actually make things better for us.

Legal Fund Needs Replenishment

Without access to legal-funds, we could not counter anti-mining activists in court. So we must replenish the fund as it gets used up. Just a little help from everyone is all that it takes to keep us in the game with really good attorneys. Fortunately, to date, our continued requests for replenishment have been answered by members and other concerned

people within the industry.

Once again, I am requesting anyone and everyone who is able, to please send in a $10 donation to help replenish the legal fund. Checks can be made out to New 49’ers Legal Fund, P.O. Box 47, Happy Camp, CA 96039. The girls in the office (530 493-2012) will also process credit or debit cards, or receive payment through PayPal. There are also Paypal “donation” buttons on the New 49er’s message forum as well as the Alaska Gold forums for your convenience.

Thanks for whatever you can do to help. We would not be able to do this without your support. Together, we are defending against one of the most serious threats to our industry that has been mounted in a very long time

2005 Program Approved on Klamath River

The Happy Camp Ranger District is allowing continued mining activity by New 49’er members under a formal Notice of Intent that has been provided by the Club on behalf of any members who wish to operate in conformance with our Operation Guidelines. Other than not dredging within a few hundred feet of Kinsman Creek (coldwater refugia), the guidelines presently are the same as what we had last year. You can obtain a copy from our office in Happy Camp (530 493-2012) or by visiting our web site.

What this means is that members who are willing to operate within our published guidelines are already covered by the Club’s formal Notice of Intent with the Happy Camp Ranger District, so it is not necessary for you to provide separate notice of your activities to the Forest Service. Basically, you just need to show up, register your presence with our office, and go to work.

Any members wishing to operate outside of our published guidelines are required to negotiate your own way, if necessary, with the federal authorities.

The Happy Camp Ranger District now covers all of the Klamath River from the mouth of Dillon Creek to Ash Creek – which is located around 5 miles downstream from Interstate 5. Happy Camp also administers Indian, Elk and Thompson Creeks. These waterways include the bulk of the mining property available to our members through our organization.

Some members have started the season early and are already actively prospecting along the Klamath River.

We are being told by the USFS that the Scott and Salmon River Ranger District (based in Fort Jones) is also going to sign-off on the formal Notice of Intent we have provided on behalf of our members. However, nothing is certain until we actually see it in writing. We learned last year to not rely upon assurances given to us until we actually them in writing.

There is no firm response yet from the District in Orleans about how they will administer mining on the lower Salmon River this year. A new District Ranger, Bill Rice, will take over on May 15. While there is still plenty of time before the dredging season begins there on 1 July, based upon how they did things last year in Orleans, I suggest it is probably better to not plan on their signing off on any Notice of Intent that we would provide on behalf of members.

This means that, unless things change, members wishing to prospect or mine along the lower Salmon River will likely need to manage your own individual relationships with the Forest Service down there.

In this event, I highly recommend that you carefully read the controlling decisions by the federal Court in Lex & Waggener and Terry McClure. While I am not an attorney, my own understanding of the judge’s decision in the McClure case just a few months ago is that the USFS cannot impose any penal authority upon small-scale miners (hand-miners and/or dredgers under the California regulations) who are prospecting on USFS land without an approved plan of operations.

If my understanding is correct, to stop mining activity that it does not approve of, it will now be necessary for the USFS to find some other punitive regulation, enact a new punitive regulation, or prove in civil court that the miner is creating significant disturbance of surface resources. It seems to me that the latter would be difficult to do, because the State of California is actively licensing suction dredging, based upon a formal finding of a non-significant impact. I would be surprised to see the USFS attempt to challenge an activity in civil court that has been approved and licensed by the State of California.

Although I must admit that I was very surprised that they challenged Terry McClure in court in last year. We live in very interesting times!

Really, the best solution all around is to create a set of guidelines we can all agree to, that allow small-scale miners to operate within bounds that are generally agreed to not create a significant disturbance. This has always been the purpose of our Operation Guidelines. Hopefully we will return to this soon in all areas where we make properties available to members. Meanwhile, because of the ongoing litigation, we will just have to cope with some confusion and uncertainty.

As the USFS is presently proceeding in such a manner as to allow our mining activity under the Notices we have provided them, we are moving forward with plans to manage a normal, full season in 2005. What else can we do?

See you out on the river,

Dave McCracken
General Manager

 


SECOND QUARTER, APRIL 2005 VOLUME 19, NUMBER 3

By Dave McCracken, General Manager


Legal Affairs

There is nothing shockingly-new on the ongoing Karuk litigation. This is a case where the Karuk Tribe of California has filed a lawsuit in federal court attempting to prevent the U.S. Forest Service (USFS) from approving Mining Plans for in-stream mining without first going through an extensive consultation process with other federal agencies.

Existing 36 C.F.R. Part 228 mining regulations allow the District Ranger to use his or her own discretion, based upon the best advice of his or her staff and other experts, to decide what type of mining activity will likely cause a significant disturbance and possibly trigger the consultation process with other agencies.

Generally, District Rangers have decided that hand-mining and suction dredging activity conforming to state regulations do not rise to the level of a “significant impact.” The Karuk Tribe is asking a federal judge, Saundra B. Armstrong in Oakland, to decide otherwise.

Our organization has filed a motion with the federal court to intervene in this litigation. We are doing this on the grounds that the miners need to be heard in this matter, since it is our rights that are being contested in the litigation.

The decision in this case will have an impact upon all national forests in America.

Since filing our motion with the Court, the Karuks have filed an Opposition to our Intervention. Their position is that even if miners are not allowed to work our claims, the BLM will allow us to own them if we pay the annual fees. Therefore, they say, our economic interest in the litigation is not important.

I won’t comment directly on the Karuk position, because we are actively involved in the litigation. But if you are interested, you can take a look at our formal Reply to the Karuks. We have created a special “Legal Affairs” page on our web site HERE so you can go up and have a direct look at the documents concerning the legal affairs that we are either involved with, or are watching closely.

Legal Fund Needs Replenishment!

As you can imagine, the very intense amount of legal activity during resent months has taken a heavy toll on our legal resources. These legal-fund resources are the only thing that allows us to meet anti-mining activists in court. So we must replenish the fund as it gets used up. Just a little help from everyone is all that it takes to keep us in the game with really good attorneys.

I am requesting anyone and everyone who is able, to please send in a $10 donation to help replenish the legal fund. Checks can be made out to New 49’ers Legal Fund, P.O. Box 47, Happy Camp, CA 96039. The girls in the office (530 493-2012) will also process a credit or debit card, or receive payment through PayPal.

Thanks for whatever you can do to help. We would not be able to do this

without your support. Together, we are accomplishing some of the most important things that are happening within our industry at this time.

 


SECOND QUARTER, JUNE 2004 VOLUME 18, NUMBER 4

 

All members should read this, because it is important to be aware that our operational guidelines have changed in several areas in response to important fishery issues that have been raised by state and federal agencies, the local Native American tribe and various environmental advocacy groups.

As most members are aware, we pay very close attention to what is happening around us and to the important events occurring within our industry that could have an impact upon our activity. A federal court decision a year ago (United States Eastern District Court of California; US v. Ronald O. Lex and Kenneth Waggener; No. CR S-01-559 LKK; May 14, 2003) that was decided against the U.S. Forest Service on behalf of some miners on the South Fork of the Salmon River has caused substantial confusion about how prospecting and mining activity and related occupancy (camping) should be managed on the forest.

An ongoing group of lawsuits between the miners, Forest Service and environmentalists in Southern Oregon is adding to the confusion and uncertainty until such time as there is a decision from the federal Court in those cases.

The 9th Circuit Court of Appeals has just confirmed a lower federal Court’s decision to withdraw the Coho salmon from the endangered species list in Oregon. There is a nearly identical lawsuit pending in the very same Court right now to eliminate the Coho salmon from the endangered species list in Northern California, which my advisors are believing will be successful very soon.

In short, there are many legal issues in flux at the moment; too many to review in this newsletter. And it is very difficult to predict how it will all come out, or how our program will be affected. In view of this, last September, we hired a very experienced consultant to begin helping us to coordinate with the Forest Service, the local tribe, various State agencies and local environmental groups to identify any critical concerns others might have about our activity, and try to find solutions that will allow us to continue operations with minimal negative impacts, while the bigger issues are being worked out in courtrooms across the west.

Because we have access to so much mining property, we are in a position to cooperate (rather than resist) when there are specific concerns that are important to others who have an interest in the forest.

Most of our active members prospect on a very small scale. Therefore, historically, we have negotiated formal mining programs with the Forest Service that covered all of the activities taking place along our claims within a published set of Operation Guidelines. You guys know them as “The Rules.” The Club then took the responsibility to generally manage our internal affairs so that all of the individual members were operating within the guidelines we had agreed to with the Forest Service and other State and federal agencies. These “group programs” have worked out well during the past 18 years. I am not aware of a single violation the Club has ever been cited for to this day.

It is important to understand that because we are a group of miners, we are not looked upon quite the same as a single, independent mining operation. On the one hand, we have substantial internal management that is very active in preventing abuse and/or negative impacts. The various agencies and groups we are dealing with all acknowledge this. On the other hand, the unknown factor of how many members could show up at the same time and pursue mining operations in a given area makes it difficult for the Forest Service to sign off on a blanket plan or program without setting some limits. There needs to be a balance set between allowing and limiting the activity.

Believe me when I tell you that we have spent countless hours during the past 8 months trying to work out solutions that are in the best long-term interest of our members. As it is time to move forward with the season, the following guidelines will apply beginning immediately:

Klamath and Scott River, Indian, Elk & Thompson Creek Properties: We continue to have group programs in place as before, with the following additional restrictions:

1) No more than 10 dredges per mile on our mining claims along the Klamath and Scott Rivers.

2) No more than 3 dredges per mile on any of our creek claims.

3) On Elk Creek, between the mouth of East Fork of Elk Creek to Cougar Creek (near the 10-mile bridge), dredge holes must be back-filled to approximately the original contour of the streambed when the dredging is finished, because this is a well-used spawning area by Coho salmon. This affects portions of E-3 & E-4.

4) To protect the (very) important cold-water refuges (the places where most of the fish go to escape critically high temperatures in the Klamath during the summer months) at the mouths of tributaries along the critically-warm Klamath River, between June 15 and October 15, there will be no dredging in the following locations:

A. Within 500 feet of the mouth of Dillon Creek on K-27.

B. Within 500 feet upstream and 1,500 feet downstream of Aubrey Creek (This area is not on our claims).

C. Within 500 feet of the mouth of Swillup Creek (This area is not on our claims).

D. Within 500 feet upstream and 2000 feet downstream of the mouth of Ukonom Creek. This is an inaccessible area (deep canyon) of rapids at the upper end of our K-25A claim.

E. Within 500 feet of the mouths of Elk, Little Grider and Indian Creeks on K-22.

F. Within 500 feet of Cade Creek at the upper end of K-20.

G. Within 500 feet of the mouth of O’Neil Creek at K-10, except that dredging is allowed below the major rapids that are downstream of the mouth.

Now let’s please put this into the proper perspective. We are in a position to make concessions that help to protect important fishery resources, because we have so much mining property that is available to our members. We possess the mineral rights to 35 miles of mining properties along the Klamath River, not to mention what we have on the Scott & Salmon Rivers and Elk, Indian and Thompson Creeks.

As we move forward in trying to find our way in harmony with ever-increasing environmental concerns, it is a reasonable strategy to spread ourselves more carefully over a larger area. As we identify the areas that we should avoid disturbing in order to protect important resources, we can acquire more mining property in other areas. That is what we have been doing. This is a win-win strategy that allows our members increased opportunity to mine in a manner that is more user-friendly to the environment.

We have already added 3 miles of new claims for our members to work this year. More will be available soon.


Salmon River Properties

There are too many issues along the Salmon River for us to put a group program in place for motorized mining activity this season, without having to make so many concessions that members would end up with less mining opportunity than independent miners on the river. That is unacceptable. Believe me when I say that everyone involved (dozens of people from State and federal agencies, tribal, local groups and our organization) have tried very hard to work out a group program similar to what we have along the Klamath River. But we could not come up with any program this season that would work nearly as well as allowing members the freedom to file your own individual Notices with the Forest Service.

The issues are too complex to explain in this newsletter. Let me just say that because of them, it is much, much easier for the Forest Service to approve an individual dredger along the Salmon River, than it is for them to give a blanket approval to some unknown quantity of dredgers that could potentially all show up at the same time.

Therefore, the Club is not going to manage a group mining program along the Salmon River this season. Members do continue to have the right to keep any and all of the gold you recover from the claims we possess along the Salmon River.

However, the methods by which you locate and extract the gold along the Salmon River will be a surface management relationship directly between you and the Forest Service. This is something new; because always in the past, the Club negotiated a group program for all members who were prospecting or mining within a specific set of guidelines.

It is difficult to say, because we are breaking new ground here; but my guess is that the operational guidelines that will be acceptable to the Forest Service along the Salmon River for individual miners will probably not be much different than what they have been for our approved group activity. Those are reasonable guidelines that have been worked out over the years. We still use them as part of our program along the Klamath and its other tributaries.

As the Club will not manage a group program along the Salmon River this season, it is important for members to understand that if you intend

to mine for gold along our Salmon properties, you are on your own in the requirement to meet the regulatory requirements of the Forest Service. If you would prefer to avoid this relationship, then I suggest you prospect on the 53 miles of mining property that is available to you through the Club along the Klamath & Scott Rivers and Indian, Elk and Thompson Creeks, where we have group programs in place.

For those who will mine along the Salmon River, a Notice of Intent to conduct mining operations is the method of letting the Forest Service know what your intentions are. There is not any specific format that is required for a Notice. It can even be accomplished in the form of a letter to the District Ranger who manages the area of forest where you wish to mine.

As with any government regulations, each different person you talk to (even within the Forest Service) has his or her own interpretation about what the regulations mean. This is particularly true concerning the threshold level of when a prospector or miner is required to give any notice whatsoever to the Forest Service about his or her activities.

If you would prefer to avoid this relationship, then I suggest you prospect on the 53 miles of mining property that is available to you through the Club along the Klamath & Scott Rivers and Indian, Elk and Thompson Creeks, where we have group programs in place.

Therefore, I am enclosing some source materials that are distributed by the Forest Service concerning the requirements and thresholds whereby Notice is required. You can read them and make your own interpretation. This is the best way.

While we are on that subject, let me just quote from a section of the U.S. Code of Federal Regulations:

“Notice of Intent Requirements; 36 CFR 228.4(a) – Locatable Minerals: Sec.228.4 (a) (2) “A notice of intent need not be filed: (iii) For operations which will not involve the use of mechanized earthmoving equipment such as bulldozers or backhoes and will not involve the cutting of trees.”

The Federal Court in Lex & Waggener (case site above) recently spoke on this subject:

“It was uncontested at trial that, at the time the appellants were camping, neither their mining operations nor their camping activities incident to those operations involved any earthmoving equipment or cutting of trees. Thus, under the regulations, until appellants determined that their operations would involve the use of earthmoving equipment or tree-cutting, they were under no obligation to file a notice of intent.”

Lex & Waggener involved a citation the Forest Service (Salmon River) issued to some miners who were camping on their mining claim. They were cited because they had exceeded the regulatory 2-week camping limit the Forest Service imposes upon normal visitors in the forest. The Federal Court spoke very clearly on this subject:

“As the regulations are currently structured, so long as no earthmoving or tree- cutting is involved, a miner can camp on his claim indefinitely, despite the environmental impact that such activity may have.”

Lex & Waggener is a published federal decision that was not appealed by the Forest Service. As I understand it (although I am not a licensed attorney), it is controlling case law on these subjects within the Klamath National Forest. In view of these circumstances, we are in the process of putting this important recent decision up on our web site – and our office will send out a copy to any member wishing to do some homework on your own.

This having been said, I should advise you that each person you speak with within the Forest Service will continue have his or her own (and often different) interpretation of what it all means, especially from one Ranger District to the next.

It is the interpretation of the District Ranger in charge of each District that is the most important to understand. Because, while you and I and the Ranger might each disagree about what the Notice threshold ought to be, I believe we can all agree that we would like to cooperate with each other to make your time in the forest an enjoyable one, rather than one of dispute and confrontation.

The Club’s management strategy has always been to try and find a compromise that everyone can live with.

Since your prospecting or mining operations along the Salmon River are something to work out between yourself and the Ranger(s), I cannot tell you how to manage these affairs. All I can do is suggest that you make contact in advance and do your best to cooperate with their requests. I suppose if there are major disagreements over what is required that cannot be worked out through compromise, it will ultimately be necessary for a judge to make the final determination. In that event, you can expect the Club to put our resources behind the effort to preserve the rights of miners. That would be our duty.

Whatever else they might require Notice for, I know from previous discussions that the Rangers are requesting Notice from independent miners along the Salmon River who:

1) Operate suction dredges or mechanized earth moving equipment.

2) Use a motorized water pump to process materials outside of the existing waterway.

3) Camp for longer than 14 days within a single District.

The Salmon River involves two separate Districts. As members, you have access to mining claims on both of them. If you decide that Notice is required for what you intend to do, the Notice should be sent to the District office which manages the area where you intend to operate:

Orleans District; P. O. Box 410, Orleans, CA 95556 (530) 627-3291
(Mining claims within Orleans District: SA-1, SA-2, SA-2A, SA-3 & SA-4)

Acting District Ranger, Joyce Thompson:
Minerals Officer, Leslie Burrows

Salmon River Ranger District; 11263 N. Hwy 3, Fort Jones, CA 96032 (530) 468-5351
(Mining claims within Salmon River District: SA-5, SAN-2, SAN-4 & SAN-6)

District Ranger, Chance Gowan
Minerals Officer, Carmen Brownell

All of our mining claim locations and individual maps are accessible from our web site. In the event that you do not have Internet access, the office in Happy Camp can provide you with individual maps to support any Notices you decide to file with the Forest Service.

All of the operational changes listed above will be incorporated into the Club’s Operational Guidelines, claims guide information, and the other written materials we publish. Before starting your prospecting or mining activity along any of the Club’s claims, please contact the office for the latest claims guide information about the areas of your interest. They are updated on a regular basis to reflect any changes as they occur.

Kind regards,

Dave McCracken,
General Manager