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

 

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

 

 

FIRST QUARTER, January 2006 VOLUME 20, NUMBER 1

By Dave McCracken General Manager

 

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

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

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

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

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

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

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

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

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

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

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

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

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

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

What country is this?

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

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

Generalities won’t do!

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

 

Planning for 2006 Season

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

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

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

Methods of Finding Gold

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

Master List of Our Mining Properties

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

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

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

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

 

Dave McCracken

General Manager

 

FIRST QUARTER, MARCH 2005 VOLUME 19, NUMBER 2

As many members will recall, last season, federal law officers from the U.S. Forest Service issued Terry McClure a criminal citation for using a 4-inch dredge on his mining claim along the lower Salmon River in Siskiyou County, California.

Terry had a 2004 California suction dredge permit which allowed suction dredging on that section of the Salmon River through the 15th of September. But the Acting Ranger in Orleans, Joyce Thompson, had decided that any suction dredging or high-banking activity along the lower Salmon River was “likely to cause significant disturbance of surface resources.” During 2004, Ms. Thompson prohibited all dredging or high-banking activity within the Ukonom Ranger District in the Klamath National Forest. This is the ranger district in which Terry had his claim.

Terry had developed a valuable deposit of placer gold on the lower Salmon River in 2003. Believing that Ms. Thompson’s decision to stop small-scale mining activity along the lower Salmon River was arbitrary and capricious and contrary to law, Terry resumed suction dredging on his claim in August 2004, and continued to operate, even though he was confronted several times by U.S. Forest Service employees, including Ms. Thompson. The conflict evolved into the issuance of a criminal citation on September 1, 2004. Federal law enforcement officers threatened Terry with arrest if he did not immediately stop dredging and remove his mining equipment from his mining claim. Terry was cited under 36 C.F.R Section 261.10(k) for occupying or otherwise using National Forest land without special-use authorization when such authorization was required.

Not wishing to be arrested, Terry withdrew from his mining claim and resumed the battle in court. Many people within our industry were outraged over this situation, and a lot of effort went into raising money to help with Terry’s legal expenses. I am proud to say that many New 49’er members contributed generously to the effort. Equal Access for Justice contributed the use of an on-line legal research service and advice. Public Lands for the People (PLP) contributed documents and advice. Laura Skaer of the Northwest Mining Association was helpful. Mike Higby, Jim Foley, Dan Miller and Gene Wiley implemented very effective and creative fund-raising programs over the industry chat forums. Other supporters helped in important ways.

After a hearing on January 18, 2005 and the filing of a total of four briefs concerning Terry’s motion to dismiss the charges against him, United States Magistrate Judge Craig M. Kellison issued an order on February 2, 2005 to dismiss the violation notice and end the case against Terry McClure before trial. The seven-page order ruled that the U.S. Forest Service cannot classify mining operations as a “Special-Use” activity under 36 C.F.R. Part 251, because mining activity (including camping on mining claims when there is active mining activity going on) is specifically excluded from Special Use regulations. 36 C.F.R. Part 251 is the “catch-all” regulation for activities on National Forest land other than mining, timber harvesting and a few other excluded uses. For example, if a power company wants to run a power line over National Forest land, it must apply for a special-use authorization.

Mining and prospecting for precious metals is managed under the 36 C.F.R. Part 228 Subpart A mining regulations, which are intended to protect the surface resources of National Forest land, while at the same time, ensuring that people have access to the public lands to search for and develop valuable mineral deposits.

The Department of Justice essentially argued in court that mining without an approved operating plan was the same as using National Forest land without a special–use authorization, and admitted that it could find no other regulation with which to cite Terry McClure. Counsel for Terry McClure, Dabney Eastham, brilliantly argued in the dismissal-motion that mining activity on U.S. Forest Service land can only be managed under the 36C.F.R. Part 228 Subpart A mining regulations, and that the regulation under which Terry was cited did not apply. The magistrate judge ultimately agreed. The judge relied heavily upon the recent landmark case of Lex and Waggener that was issued a year ago (United States v. Lex, 300 F. Supp. 2d 951 (E.D. Cal. 2003)), deciding that camping on mining claims by active miners also must be managed by the U.S. Forest Service under the 36C.F.R. Part 228 Subpart A mining regulations.

The judge ruled that miners cannot be charged for failure to obey the Special-Use Authorization regulations if they do not file a notice of intent to mine or refuse to file an operating plan with the U.S. Forest Service. You can find the judge’s decision, along with the relevant case filings, on our web site CLICK HERE

This, for the most part, seems to have eliminated the U.S. Forest Service’s power to issue criminal citations to individuals who are engaged in small-scale gold mining activity, or who are camping in association with that activity. It appears that in order to bring a case against a miner, they will need to be prepared to prove in civil court either that the person is not a miner at all, or that the mining activity truly is creating a substantial disturbance of surface resources so that the miner can be prevented by a civil injunction from operating without an approved operating plan.

This decision strongly vindicates the rights of miners under the 1872 mining law, directly in step with the Lex and Waggener Decision of 2003.

Joyce Thompson is no longer the acting district ranger in Orleans.

I would like to take this opportunity to congratulate Terry and Joanne McClure. Their win will affect the way the entire small-scale mining community is managed by the U.S. Forest Service from this time forward.

Anyone who has ever been involved with this kind of ordeal knows well that it takes an enormous depth of emotional substance to stand up to the overwhelming might of the U.S. government. The McClure’s quiet and steely determination to challenge the arbitrary and capricious action of the Acting Ranger, at the risk of criminal penalties, should make us all proud to be miners.

Karuk Lawsuit Going into High Gear!

The Karuk Tribe of California filed a lawsuit in federal court on the 8th of October (2004) against the U.S. Forest Service (USFS) to prevent the USFS from allowing dredging or high-banking in or near any waterways (so-called “Riparian Reserves”) within the Klamath and Six Rivers National Forests, unless the USFS first undertakes exhaustive and time-consuming measures to ensure that the activities will not disturb various species of animals.

Because there is ongoing litigation, it is better that I do not comment on it any more than is necessary to help generate support within our own industry. This is a time for all good miners and supporters to pull ourselves together.

We have created a special “Legal Affairs” page HERE on our web site 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.

The Karuk lawsuit is about what rises to a “significant disturbance of surface resources,” and who should make that determination. 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 an extensive consultation process to which a substantial number of additional federal agencies become involved.

Generally, District Rangers have decided that hand-mining and suction dredging activity that conforms to state regulations does 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.

The USFS seems to be taking a firm stand, defending the way it has historically managed small-scale gold mining projects. This is good for the prospectors and miners!

However, this is a challenge our whole industry must face together, because all of us

will certainly be affected by the outcome. Just as this newsletteris going to press, The New 49’ershas filed a motion with the federal court in Oakland to intervene in the litigation. We are doing this on the grounds that we will be directly impacted by the outcome of the litigation, and that we cannot depend upon the USFS to fully defend the rights of miners. The miners need to be heard in this matter!

Part of filing this Motion has also required us to file a very substantial proposed answer to the Karuk complaint. Pulling it all together has taken a lot of effort by the two attorneys that represent us, me and others. The decision in this case will affect all national forests in America. There is a lot at stake here, and we have done our absolute best to represent the interest of prospectors and miners in these national forests.

This action brought by the Karuk Tribe is just getting started. I believe the real drama will unfold over the next several months. If you are interested, I encourage you to go up on our web site and take a look at our Motion to Intervene, and our proposed answer to the Karuk Tribe’s complaint. It will give you a good idea how hard we have been working lately! These case filings can be found HERE

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. You guys know that gulping feeling when you start worrying about running out of money? I’m starting to get it!

Therefore, 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.

Dave McCracken
General Manager

 


FIRST QUARTER, JANUARY 2005 VOLUME 19, NUMBER 1

Legal Matters

The Karuk Tribe of California filed a lawsuit in federal court on the 15th of October (2004) against the U.S. Forest Service (USFS). The purpose of the lawsuit is to stop the USFS from allowing any mining or prospecting activity between the high-water lines of any active waterways within the national forests, unless the USFS first undertakes exhaustive measures to ensure the activity will not create undue surface disturbance.

Because there is ongoing litigation, it is better that I do not comment on it any more than is necessary to help generate support within our own industry. This is a time for all good miners and supporters to pull ourselves together. Links to the legal filings in the case can be found up on the Club’s chat forum. This can be found by clicking here.

The Karuk’s lawsuit was put together and filed by the Western Mining Action Project. This is an organization that is based in Colorado, a long way away from our program in California. It is no secret that this group is a coalition of environmental organizations that have come together for the single purpose of eliminating all mining within the public lands of America.

To know what this law suit is really about, all we have to do is focus on the Causes of Action listed at the end of the Karuk’s complaint. These are the points where the Karuks are asking for relief from the Federal Court. Regardless of all the other things said in their complaint; what the Karuks are really asking for is a determination by the Federal Court that the US Forest Service should not be allowing any prospecting or mining activity (by any individuals or groups) within riparian reserves (within the high-water marks of waterways) on the public lands, unless the miner or prospector has been fully processed through an Operating Plan.

Operating Plans these days are taking up to 5 years or longer for the U.S. Forest Service to process. In fact, they take so long, that a Ranger’s determination to require one (or the Federal Court’s determination that Operating Plans will be required from all in-stream miners) amounts to a de-facto disapproval of any mining plan. Who can afford to wait 5 years for an answer?

The Karuk’s complaint suggests that even a person using a hand-shovel to dig a single sample should not be allowed to do so without an approved Operating Plan. So this is a very important challenge to mining; I believe, the most serious and far-reaching challenge that we have ever faced as an industry.

The lawsuit is about what rises to a “significant surface disturbance,” and who should make that determination. The lawsuit complains that any and every disturbance within riparian reserves is “significant,” and therefore should require exhaustive environmental study before being allowed.

The good side is that the USFS has come out fighting this legal challenge from the start. Their first move has been a Motion to Dismiss the litigation altogether. The USFS is taking a very firm stand defending the way they have historically managed small-scale gold mining projects. This is good for our side.

However, this is a challenge our whole industry must face together. Because all of us will certainly be affected by the outcome.

Our New 49’ers Mining Association is in the process of putting together a Motion to Intervene in the litigation. We have retained and are presently conferring with several attorney-specialists

to assist us. The process is ongoing. I should not comment more specifically than this — other than to let you know we are doing our absolute best to combat this challenge, given the (very) limited financial resources at our disposal.

While there are many reasons to get involved with this litigation, the primary one is that it is the fundamental rights of miners and prospectors that are being challenged by the Karuk Tribe (represented by a conglomerate of large environmental interests). We have no control over how aggressively the government will fight for our rights. So we must be directly involved in the ongoing litigation.

Litigation costs money – especially, as in this case, when it is necessary to hire specialists. We need to hire the best specialists we can afford. We need more than we have already hired! That’s all I can say about this.

In anticipation something like this could happen, our organization began raising money last summer for a legal defense fund. This produced enough of a fund that we have been able to launch ourselves into this litigation. But not enough to see us through it! We are now looking to all active members to help in this effort.

I encourage you to meet with any local mining associations you are aware of, and pull together whatever financial resources you can. Please send them in care of our legal defense fund: The New 49’ers — Legal Fund P.O. Box 47, Happy Camp, CA 96039 (530) 493-2012.

I am also asking all members to please send in $10 or more. Every contribution helps!

If you are not comfortable sending money to our fund, we will be happy to provide the names and addresses of our attorneys, so you can send money directly to them. Whatever works best for you. We will accept help any way we can get it!

The mining law really does support our side in this litigation. And a lot of the claims being made inside the Karuk Complaint are just not true. When (if) we win, we will have some clearly established law on the books that will defend small-scale miners at the federal level a long way through the 21st century. This will put us ahead!

Ever-increasing conservative policies (and laws) being put out by the Bush Administration should also help us win this battle.

But we must all work together. Because we are up against some very substantial environmental interests that are trying to eliminate all mining and prospecting within all waterways on the public lands in this single lawsuit. They are going to throw everything they have at it. So should we!


Terry McClure

Not much has happened yet in the case of Terry McClure. He was cited last summer by (ex)Ranger, Joyce Thompson, for dredging on his mining claim along the lower Salmon River.

For more information about this, please see our September Newsletter.

A Preliminary Hearing is scheduled for mid-January, where the judge will entertain a Motion to Dismiss on the grounds that Terry was cited under a regulation that allows no jurisdiction over mining activity on the public lands. The case is very early in its evolution.

Terry is represented by a competent and enthusiastic attorney, and we feel pretty confident that Terry will come out on top when this case comes to an end. I’ll keep you informed.

Best wishes to everyone for a happy holiday and prosperous New Year!

Dave McCracken

General Manager

 

By Dave McCracken

In a 37-page decision by United States District Judge Saundra B. Armstrong on the 1st of July, 2005, a Summary Judgment Motion by the Karuk Tribe of California to prevent the U.S. Forest Service (USFS) in the Klamath National Forest from allowing any in-stream mining activity without first requiring years of exhaustive environmental evaluation – was DENIED!

This case was filed by the Karuks in late 2004 against the USFS, on the grounds that in-stream mining activity requires a heightened level of environmental scrutiny pursuant to clauses within the Northwest Forest Plan (which affects 19 forests in California, Oregon & Washington State) and the Klamath National Forest Plan.

As the outcome of the litigation would affect small-scale miners more than anyone else, under the banner of The New 49’ers, numerous small scale miners along with multiple mining organizations pulled together the necessary resources to retain very competent attorneys to intervene in the litigation on our behalf.

During the litigation, it became clear that not only did the Karuks and their environmental allies want to stop all of the small-scale mining activity within the Klamath National Forest, but they had their sights set on stopping mining throughout the entire Pacific Northwest. The general nature of the legal arguments concerning this case, and the final decision, should have some impact on most small-scale mining activity in the western United States.

As the litigation was a challenge to USFS Agency decisions, it was decided early on in the litigation that the full case would be decided by Judge Armstrong in a Motion for Summary Judgment. Therefore, this decision puts an end to this particular litigation.

The Karuk’s argued that the USFS was bound by the language within the Northwest Forest Plan which requires any and all mineral activity within the high water marks of active waterways to be managed through a formal Operating Plan (Operating Plans can take years to process).

Both the USFS and the Miners argued that the general mining law and existing mining regulations do not grant any authority to the USFS to manage mining or prospecting activity which does not create a significant disturbance of surface resources in the National Forest. Therefore, we argued, that the Northwest Forest Plan could not create an authority over miners and prospectors which did not exist in the first place. The judge agreed.

I encourage all miners to read the full decision, because it provides excellent education specifically how the federal courts today are interpreting the rights of miners. Here follow just a few excerpts from Judge Armstrong’s decision:

“Third, Plaintiff’s [Karuk Tribe] argument utterly ignores the fact that mining operations take place pursuant to the General Mining Law and the Surface Resources Act, which confers a statutory right upon miners to enter certain public lands for the purpose of mining and prospecting. This distinction is significant, as it differentiates mining operations from “licenses, contracts, leases, easements, rights-of-way, permits, or grants-in-aid,” which are permissive in nature”.

“Further, Plaintiff’s [Karuk Tribe] assertion that the standards and guidelines [language in the Northwest Forest Plan] have the ‘force and effect of binding law’ is flatly contradicted by the explicit language in the Northwest Forest Plan. Specifically, the Northwest Forest Plan provides that its standards and guidelines ‘do not apply where they would be contrary to existing law or regulation, or where they would require the agencies to take actions for which they do not have authority.’”

“By the Plan’s own terms, the mining regulations supersede the requirements of MA 10-34.”

“Indeed, as Defendants argue, Plaintiff’s narrow reading of the Klamath Forest Plan is untenable in light of numerous regulatory and statutory provisions that apply to mining in national forests and blatantly ignores the fact that, pursuant to the General Mining Law and 36 C.F.R. Section 228, the Forest Service may not interfere with mining that is not likely to result in a significant disturbance of surface resources.” (emphasis added)

This, in my own view, was one of the most important and dangerous cases our industry has had to defend against in a very long time. I am happy to announce that it is the end of a very stressful chapter (fear of losing). I cannot express how relieved I personally am that this decision came out so strongly affirming the rights of miners, and acknowledging that the USFS has pursued a very consistent management approach, despite conflicting statutes which also require environmental protection.

The positive result of this litigation is that the USFS has been forced to clearly define the fundamental rights of miners, and the federal court has affirmed them.

We should not overlook that the USFS performed admirably to acknowledge, affirm and support the mining rights in this litigation.

I want to thank out two attorneys, James Buchal and Dabney Eastham who worked tirelessly on our behalf. And I want to express my most heartfelt gratitude for the many, many supporters out there who have made financial contributions so we could stay in the game.

This, indeed, is a sunny day for small-scale miners!

Dave Mack

 

SB 670 (WIGGINS)

Dear Assembly Member:

or

Dear Governor Schwarzenegger:

Please vote no on SB 670 (Wiggins)

  • The EIR-update, ordered by the courts, and subsequently funded by the State, is now underway.

  • The Department of Fish & Game just issued a Decision stating that existing biological information does not justify imposition of Emergency Regulations upon suction dredgers.

  • Suction Dredge Mining has not caused the decline of the salmon population along the California Coast. None of the reports on the decline of the Salmon population issued blame upon suction dredge mining.

  • The 1994 EIR found that suction dredging under existing regulations provide positive impacts; among other things, creating additional salmon spawning habitat by loosening concretized river gravels. Salmon runs are on the upswing in the Klamath River.

  • There is no scientific evidence to support shutting down a legal and legitimate industry across the State of California before an update of the existing the EIR is completed, particularly when prior studies fail to demonstrate any link between local salmon populations and suction dredge mining.

  • Suction dredge mining is already limited in California to a short season that keeps the miners out of the rivers and streams when salmon redds are present (where the eggs are deposited). There is no suction dredging allowed when salmon are spawning. There is no suction dredging allowed on the Sacramento River, where salmon populations are presently in decline.

  • A moratorium on suction dredge gold mining in California will violate the private property rights of thousands of Californians who have federal mining claims along the rivers and streams, and will likely result in very significant “takings” liability against the State.

  • The average small scale dredge-miner spends thousands of dollars per month when mining. Much of this money is spent in local, rural economies like Siskiyou County where mining is popular. Tax revenues generated from expenditures such as fuel, groceries, camping, and mining supplies, means that rural counties and the State of California benefit as well.