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.
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.