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.

 
Dave Mack

“This is probably our last chance to kill a suction dredge moratorium in California!”

 

 

Dear Fellow Gold Prospector,

Assembly Bill 1789 (includes anti-suction dredge provisions) will be attached to the full California budget bill which will be voted upon by the California legislature sometime within the next few weeks.

target=”_blank”>Here is a short summary from Pete Conaty. Here is a letter to the California governor which our attorney has already written on our behalf. Here is a more complete explanation of our strategy on how to defeat this harmful attack upon our industry, and how you can help.

We need your immediate help in sending a letter, fax or email to Governor Arnold Schwarzenegger, asking him to please veto the harmful anti-dredging language included within AB 1789.

We must either kill this rider right now, or there is a good chance that suction dredging permits will be adversely affected in California next season!

Here is a ready-made message (email, fax or letter) in opposition to AB 1789. It is better if you just use this sample to write your own message. But if you do not have time to do that, please at least copy the text from our sample message over to create your own fax, letter or email to the Governor.

If you don’t know how to copy and paste material off the Internet, please click here.

To make certain your message actually makes it to the Governor’s desk and the other lawmakers, our lobbyists are asking that you direct them to one of the following addresses:

Pete Conaty & Associates
1107 9th Street, Suite 530
Sacramento, CA 95814

Or Fax your message to: (916) 492-8957

Or email your message to: pconaty@sbcglobal.net

Our lobbyists will make certain that your message is hand delivered to the Governor’s office and other key locations!

Important: Even though you send your message to our lobbyists, the heading of the message should be addressed to Governor Arnold Schwarzenegger as shown in our sample message.

This is probably our last chance; please help us kill this harmful legislation now!

Very important: You must include your own return postal address on whatever letter, fax or email that you send to the Governor. That is the only way that he can recognize and weigh the importance of your communication!

Thank you very much for your help in this very important matter!

Dave McCracken

 

The New 49’ers27 Davis Road, Happy Camp, CA 96039 (530) 493-2012

www.goldgold.com

 
Dave Mack

“We killed Assembly Bill 1032!”

Please make a donation to our Legal Fund.

I’m sure most of you have already heard that Governor Schwarzenegger has vetoed Assembly Bill 1032. This is a very big win for gold prospectors everywhere!

It was a very close race all the way to the finish line on this very harmful legislation; it could have gone either way at the last minute. Our lobbyist told me that the 1000+ emails and faxes that you guys (and gals) generated for our side during the last few days may have been what tipped the balance in our favor.

For those of you who responded to our Action Alerts, I thank you very much!

That’s another very big win for our side!

I will follow with a more detailed report (from our lobbyist) in the upcoming newsletter. Then we can put this business behind us and get on with some exciting gold prospecting activity!!

I hope you guys are following the gold prices; they are going up, up, up! Hooray for us!!

We just finished our most productive season ever in The New 49’ers, with plenty of golden adventure — a lot which has already been edited into exciting video segments. We will include those in upcoming newsletters.

For the moment, though, let’s all just breathe a sigh of relief and give ourselves some well-deserved pats on the backs for overcoming that awful legislation.

Whew; that was a close one!

Here follows Governor Schwarzenegger’s veto message:

To the Members of the California State Assembly:

I am returning Assembly Bill 1032 without my signature.

The purpose of this bill is to protect fish and wildlife from the potential deleterious effects of suction dredge mining. Although I appreciate the author’s intent and the need to protect our fish, wildlife, and water resources, this bill is unnecessary.

Current law gives the Department of Fish and Game (Department) the necessary authority to protect fish and wildlife resources from suction dredge mining. It has promulgated regulations and issues permits for this activity. Permits for suction dredge mining must ensure that these operations are not deleterious to fish and allow the Department to specify the type and size of equipment to be used. In its regulations, the Department may also designate specific waters or areas that are closed to dredging.

It is unclear why this bill specifically targets a number of specific waterways for closure or further restrictions. The listed waterways represent only a small fraction of the waters in our State where suction dredging is occurring. The benefit or protection from such a minor closure is negligible and supports the notion that scientific environmental review should precede such decisions.

Sincerely,

Arnold Schwarzenegger

 
Dave Mack

“Here is my comment letter to the State Water Resources Control Board…”

 

State Water Resources Control Board
Division of Water Quality
P.O. Box 100 Sacramento, California 95812-0100
Fax: 916-341-5620 email: commentletters@waterboards.ca.gov

6 June 2007

Dear Sirs,

My name is Dave McCracken. I manage The New 49’ers Prospecting Organization in northern California, where our members have access to over 60 miles of mining claims along the Scott, Salmon and Klamath Rivers, and some of their creek tributaries in Siskiyou County. We have around 1,300 active members, some who use suction dredges under permit from the Department of Fish and Game (DFG).

As I have been actively managing this program for the past 23 years, I have had plenty of opportunity to observe the impact upon water quality from the effects of suction dredging. My personal observation has been when any visual impact can be seen at all, the impact is small and localized. This observation has been similarly reflected by numerous studies and published reports on this subject. For example, a report on the water quality cumulative effects of placer mining on the Chugach National Forest, Alaska found:

“The results from water quality sampling do not indicate any strong cumulative effects from multiple placer mining operations within the sampled drainages.” “Several suction dredges probably operated simultaneously on the same drainage, but did not affect water quality as evidenced by above and below water sample results. In the recreational mining area of Resurrection Creek, five and six dredges would be operating and not produce any water quality changes (Huber and Blanchet, 1992).

I was operating a 12-inch dredge under Special Permit along the Klamath River during the early 1990’s. As part of that Special Permit process, DFG biologists visited the area where I was dredging and conducted turbidity sampling above my dredge and around 200 feet below my dredge. They were not able to determine any increase in turbidity. Therefore, my Special Permit to operate the 12-inch dredge was approved for as long as I continued to apply for it. These observations were consistent with other published information on this subject:

Thomas (1985), using a dredge with a 2.5-inch diameter nozzle on Gold Creek, Montana, found that suspended sediment levels returned to ambient levels 100 feet below the dredge. Gold Creek is a relatively undisturbed third order stream with flows of 14 cubic feet per second. A turbidity tail from a 5-inch (12.7 cm) dredge on Clear Creek, California was observable for only 200 feet downstream. Water velocity at the site was about 1 foot per second (Lewis, 1962).


Turbidity below a 2.5 inch suction dredge in two Idaho streams was nearly undetectable even though fine sediment, less than 0.5 mm in diameter, made up 13 to 18 percent, by weight, of substrate in the two streams (Griffith and Andrews, 1981).


Hassler (1986) noted “…during dredging, suspended sediment and turbidity were high immediately below the dredge, but diminished rapidly within distance downstream.” He measured 20.5 NTU 4 meters below a 5-inch dredge that dropped off to 3.4 NTU 49 meters below the dredge. Turbidity from a 4-inch dredge dropped from 5.6 NTU 4 meters below to 2.9 NTU 49 meters below with 0.9 NTU above. He further noted “…water quality was impacted only during the actual operation of the dredge…since a full day of mining by most Canyon Creek operators included only 2 to 4 hours of dredge running time, water quality was impacted for a short time.” Also “…the water quality of Canyon Creek was very good and only affected by suction dredging near the dredge when it was operated.”

As I am sure that you aware, environmental interests have been trying to eliminate suction dredging from California’s waterways for a long time. During recent years, they have been making noise about the possibility that the localized increased turbidity behind some suction dredges may contribute to raising water temperatures in the overall waterway. With concern over this possibility, we hired two qualified fish biologists (both retired from the EPA) two years ago to perform water temperature testing upstream and downstream of active dredging operations along the Klamath River. They tested in numerous locations, and were not able to find any measurable increase in water temperature behind operating dredges. Although, in some cases, they did discover cooler water within the dredge holes, and cooler water within the discharges from the dredges which were sucking up the cooler water (probably ground water) from the dredge holes. Similar results were acknowledged by published material on this subject:

Dredge mining had little, if any, impact on water temperature (Hassler, T.J., W.L. Somer and G.R. Stern, 1986). In addition, the Oregon Siskiyou Dredge Study (SNF, 2001) states, “There is no evidence that suction dredging affects stream temperature.”

I was personally directly involved with the California Environmental Quality Act (CEQA) process during 1993 and 1994 (and again in 1997), when existing State-wide suction dredge regulations were adopted by California. I recall that the State Water Resources Control Board enacted a State-wide exemption at that time for persons operating suction dredges in conformance with Section 5653 suction dredge regulations. As I recall, this exemption was issued to simplify the permitting process for suction dredgers (many who visit from out of state and only suction dredge during a brief holiday or vacation), and also to not burden the State Water Resources Control Board or its Regional offices with applications from thousands of (very) small-scale gold miners who have a negligible impact, if any, upon water quality. This was somewhat reflected in the environmental Impact Statement (EIS) which was published by DFG at that time:

Suction dredging causes less than significant effects to water quality. (CDFG, 1997).

“Suction dredges, powered by internal combustion engines of various sizes, operate while floating on the surface of streams and rivers. As such, oil and gas may leak or spill onto the water’s surface. There have not been any observed or reported cases of harm to plant or wildlife as a result of oil or gas spills associated with suction dredging” (CDFG, 1997).

The impact of turbidities on water quality caused by suction dredging can vary considerably depending on many factors. Factors which appear to influence the degree and impact of turbidity include the amount and type of fines (fine sediment) in the substrate, the size and number of suction dredges relative to stream flow and reach of stream, and background turbidities (CDFG, 1997).

“Effects from elevated levels of turbidity and suspended sediment normally associated with suction dredging as regulated in the past in California appear to be less than significant with regard to impacts to fish and other river resources because of the level of turbidity created and the short distance downstream of a suction dredge where turbidity levels return to normal” (CDFG, 1997).

As far as I know, the most comprehensive study to date concerning how water quality is affected by suction dredging was contracted by the EPA to analyze of the effects on mining in the Fortymile River in Alaska. The report stated:

“This report describes the results of our research during 1997 and 1998 into the effects of commercial suction dredging on the water quality, habitat, and biota of the Fortymile River. The focus of our work on the Fortymile in 1997 was on an 8-inch suction dredge (Site 1), located on the mainstem At Site 1, dredge operation had no discernable effect on alkalinity, hardness, or specific conductance of water in the Fortymile. Of the factors we measured, the primary effects of suction dredging on water chemistry of the Fortymile River were increased turbidity, total filterable solids, and copper and zinc concentrations downstream of the dredge. These variables returned to upstream levels within 80-160 m downstream of the dredge. The results from this sampling revealed a relatively intense, but localized, decline in water clarity during the time the dredge was operating” (Prussian, A.M., T.V. Royer and G.W. Minshall, 1999).

“The data collected for this study help establish regional background geochemical values for the waters in the Fortymile River system. As seen in the chemical and turbidity data any variations in water quality due to the suction dredging activity fall within the natural variations in water quality” (Prussian, A.M., T.V. Royer and G.W. Minshall, 1999).

While I acknowledge that the possibility exists that a suction dredger could encounter an occasional patch of particularly-silty streambed, while dredging in a smaller-sized waterway, which could cause detectable increased turbidity levels some extended distance downstream, this would be a rare anomaly which seldom occurs. My guess is that our adversaries in the environmental community will grasp at these very rare occurrences to push their own agenda — which we all know has less to do with the health of fish, than it does about trying to rid America’s public lands of productive activity.

Nothing short of complete prohibition of all productive activity can guarantee that an occasional anomaly might not occur. This is true of any regulated activity. We would not want to see the Statewide exemption for suction dredgers un-renewed just because of the possibility of a rare anomaly. There are several reasons to pause and consider:

1) The occurrence of excess turbidity by suction dredgers is so rare, there is no evidence that we are aware of that even suggests that those rare occurrences have ever harmed a single fish or other aquatic species.

2) The burdensome and expensive requirement for suction dredgers to acquire a water quality permit would all but eliminate the activity in the State of California. DFG is already charging out-of-state visitors $167.25 for an annual suction dredge permit. That’s already a lot of money to spend on a permit for someone who is only going to visit for a few days or a week or two. I know, because I am in the business of trying to bring visitors to California. And I can tell you that many who would otherwise come here are already discouraged from coming because of the cost of the existing suction dredge permit.

Adding a burdensome water quality permit to the process will also discourage most Californians who presently enjoy the activity of suction dredging.

Gold prospecting has been a productive activity in California since before we were even a State. And while I acknowledge that some of the earlier practices were harmful to the environment, suction dredging today is carefully regulated by DFG and other agencies to ensure that the overall impacts do not create any measurable negative impact.

With this in mind, I encourage you to please weigh the negatives against the positives when you make a decision concerning a renewal of your state-wide exemption for suction dredgers. While I understand that economic consequences not your first concern, good leadership and responsibility to Californians require State agencies to take an honest look at the costs and benefits of the various policies which are being considered.

In this case, if you choose to not renew the state-wide water quality exemption for suction dredgers, I can nearly guarantee that you will eliminate an entire industry in this State; an industry which does a great deal to help support many rural communities; an industry that generates millions upon millions of dollars in income for California — and would continue to do so for the foreseeable future. We hope you will carefully consider what will be gained before you destroy our industry!

Thank you very much for considering my comments.

Sincerely,

Dave McCracken
General Manager, The New 49’ers

 

 
Dave Mack

“Your comments are needed!”

 

The California State Water Resources Board is requesting comments from the public regarding the effects of suction dredge mining on water quality. Based upon the comments, the Water Board will assess the available information to evaluate a possible further course of action. You can link to the Water Board’s Notice here.

This is a very important matter to the future of our industry. The outcome of this will either help or hurt gold dredgers in California!

We believe that some of the most productive input prospectors can provide to the Water Board are the conclusions from multiple studies which have already proven that suction dredge activity within existing California regulations does not create any significant negative impact upon water quality.

To help with this, a very qualified fish biologist has taken the time to compile for us many of the important conclusions into a report which you can copy from. Those conclusions can be found here.

The Water Board’s Notice requests comments to be sent by email to the following address: commentletters@waterboards.ca.gov Comments are being accepted until 12 PM on June 22. The subject line of your email should read, “Comment Letter – Suction Dredge Mining

Please take a moment to send in your comments on behalf of suction dredgers. Because I can guarantee that our adversaries will be submitting material with the hope of shutting us down!

Please don’t copy all of the conclusions into your comments. It is better to just copy those sections which give support to the arguments which you personally want to make. It is good if you make your own arguments, and then copy over the citations which reinforce your position. This way, everyone is not just sending in the very same report!

Note: The citations which you want to copy are the ones that include the source of the information inside parenthesis. Here’s an example: Dredge mining had little, if any, impact on water temperature (Hassler, T.J., W.L. Somer and G.R. Stern, 1986).

The citations in the report will carry weight, because they originate from published results. If you don’t know how to copy and paste material off the Internet, please click here.

As an example, here is a copy of the comments which I personally sent in. They relay some of my own experiences concerning water quality, and they use some of the compiled citations to reinforce my view.

Important: You must include your name and address on your comments! Comments are generally not accepted by anonymous persons! Please keep your comments civilized, and please keep them focused upon the subject of how dredging affects water quality. That is the only thing they will consider in these comments!

The open hearing on this matter is scheduled for 10 AM on 12 June at the Resources Building, First Floor Auditorium, 1416 9th Street in Sacramento. Being there is not as important as sending in written comments, but it would be a good thing to have a big showing of support at the hearing if you can make it!

The main thing is to please draft some comments and send them in!

Thank you very much for your help in this matter!

Dave McCracken The New 49’ers

The New 49’ers27 Davis Road, Happy Camp, CA 96039 (530) 493-2012

www.goldgold.com

 
Dave Mack

“This is the current status of the ongoing EIR process on suction dredging in California.”

This was a section of Dave’s March newsletter, which can be found here.

Progress on EIR:

The one thing that will allow us all the put our suction dredges back in the California waterways is completion of the EIR!

It is so important that the job must be done right. This is because anti-mining activists are also attacking us within the ongoing EIR process. They are trying to show that suction dredging creates really bad impacts, when it actually does not.

During the past several weeks, DFG has organized several formal meetings where interested parties (concerning suction dredging) have been able to meet and discuss the various issues which need to be worked out. The third and final of these meetings took place on 11 March. The New 49’ers, along with several other organizations within our industry, has very qualified representatives at these meetings. Anti-mining activists are also well represented in the process. There are specialists involved which represent all sides of the issues.

Through the discussions and other public input so far concerning suction dredging, the subject of mercury appears to be one of the most important and contentious issues so far.

While the authorities have proven that normal suction dredges recover 98% of the mercury that is sucked up into our sluice boxes, anti-mining activists are taking strong issue with the potential loss of 2% becoming a water quality violation. Yes; I know; you would think that the various government agencies and environmental organizations would be happy with a 98% rate of mercury recovery at no cost to the taxpayers. But nearly all of the focus remains upon the potential 2% loss of mercury which would have already been in the stream or river in the first place!

I personally have been involved with several federal projects during the past few years to help figure out how to recover 100% of the mercury (zero loss) when trying to remove mercury from submerged waste sites where hundreds or thousands of pounds of mercury were lost from historical gold mines.

During 2008, we developed a closed circuit dredging devise that is able to trap all of the sediments and all of the water used to create suction-power at the nozzle. We tested the system with assistance from the Bureau of Land Management and U.S. Geological Service, actually proving that by recirculating the same water over and over gain to dredge contaminated waste material (from the South Yuba River in California), we were able to capture and concentrate 100% of the finest particles of mercury that would presumably be lost from a normal suction dredge. The project was quite successful!

However, anti-mining activists have now taken the mercury concentration levels within our closed system (which was used for hours within a known waste site) to try and prove their case that suction dredgers are discharging high levels of mercury into active waterways all across the State. It never ceases to amaze me how low our enemies will stoop to try and get rid of us! Here, we were doing a really good thing by developing equipment that will help clean up serious waste sites. And anti-mining activists are trying to misuse the data to create a negative reflection upon all suction dredgers.

So I have personally invested quite a lot of time in trying to straighten this all out within the ongoing EIR process concerning normal dredging activity outside of hazardous waste sites. You can find my work on this subject on our web site. I highly recommend this as excellent reading if you want to get a feel for what we are really up against.

The New 49’ers27 Davis Road, Happy Camp, CA 96039 (530) 493-2012 www.goldgold.com