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

 
Dave Mack

“Here is an explaination of the Karuk Tribe Lawsuit against the California DFG to change dredging regulations…”

Hello Everyone,

We will be firming up details better as we move forward with this, but here are the facts as we know them:

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

2) The reason we never heard about the pending litigation in California, is that the Karuk’s chose to file their lawsuit down in the bay area, far distant from the specific areas of mining they are attempting to shut down. 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.

3) More recently, DFG and the Karuks came to a settlement agreement within the litigation. We have not yet been able to obtain a copy of that agreement, because the Karuk’s refuse to give us a copy, and DFG has not responded to our request for a copy.

4) But we do have some idea of how the proposed settlement will affect us, because DFG has already begun to implement modified dredge regulations as they apply to the waterways within the Klamath National Forest.

5) 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. You can read the notice in the beginning of the DFG regulations.

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

The existing DFG dredging regulations are supported by a full Environmental Impact Statement (EIS) that was completed during the mid-1990’s. That entire process played out over the course of several years, with representatives from the mining community, environmentalists, organized rafting groups and many others taking an active roll in the process. The California Administrative Procedures Act (APA) requires 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 radical environmentalists in a (behind closed doors) court settlement – without so much as a single word to the thousands of people who will lose property rights. My best guess is that they do not have the authority to do that!

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 radical environmentalists just within the past few months.

The good news is that our attorneys have already contacted the Court where this State litigation is pending, and the settlement agreement (which DFG is already implementing) has not yet been signed by the judge! Our attorneys have already alerted the judge in this case that miners will be negatively impacted and wish to be heard before any judgment or settlement is made final. While I have not seen anything in writing, I gather that the judge is going to allow us to make a presentation in a hearing scheduled for 20 December.

While we are still studying this case, and we will need to listen closely to the advice of the experts we have hired to help us, we will be pushing to have the settlement agreement withdrawn, and DFG’s modified dredge regulations withdrawn until conclusive proof is presented that:

1) Dredging activity under the pre-existing regulations is creating some meaningful amount of harm to the COHO Salmon.

2) That modified regulations will protect those specific concerns in such a way as to create the least amount of cost or damage to the user groups and communities which will be affected by the modified regulations.

3) That all persons who will be affected by regulatory changes are given a reasonable opportunity to become involved.

I could be wrong about this, but I believe DFG does not have 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!

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.

If it s too late in the existing litigation to be heard, we will need 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!

If it is not already on the books (and it ought to be), it is time to get some clear case law published that State agencies have no authority to write off the whole public trust by selling out the rights of others to radical extremists in a court settlement! What good does it do to go through the whole public process, if attorneys can later go behind closed doors and decide to give it all away in a court settlement?

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, we all 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 been signed off by the judge yet.

By the way, we also have found out that the Karuks have no federally-recognized fishing rights. Yet DFG 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 (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!

Does this make you guys as mad as it makes me? I agree with several of the forum posts that it is time for the miners to take an offensive stand against our adversaries. This looks like a good place to start!

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 you guys to please raise at least several thousand dollars as quickly as possible. We need to get ahead of the curve on this one!

I especially want to thank Harry Lipca who always seems to be one of the first in our industry to detect potential problems coming our way.

Also, 49’er Mike who has worked tirelessly on our behalf since this problem has surfaced. Mike is one of the best critical managers that I know. We are really lucky to have him on our team!

More soon, as the news develops.

Dave Mack

 

By Michael Burnside, June 17, 2005

In 1897, Congress passed the Organic Act, which established the National Forest System and the purposes for which it would be managed. In regard to mining, the 1897 Act said that while the Forest Service couldn’t prohibit activities reasonably incidental to mining under the 1872 General Mining Law, the Forest Service was authorized to create reasonable rules to regulate the adverse effects of mining activities on the National Forests, and miners had to comply with those rules. In 1974, the Forest Service finally wrote those regulations. Since 1974 was the first attempt at rule making to oversee the surface effects of mining, the rules had imperfections and there were concerns over the years about their interpretation and application. But the Forest Service was largely consistent in how it interpreted them and in the manual direction it issued to apply its 36 CFR 228A regulations to minimize adverse environmental impacts from mining activities. In short, the Forest Service logically focused on the likely impacts of proposed mining activities, and required miners to submit plans of operations for all activities which would likely cause significant surface disturbance, regardless whether those activities involved mechanized earth moving equipment or the cutting of trees.

Activities which do not necessarily involve mechanized earth moving equipment or the cutting of trees could include construction of ore processing mills and mill sites; residential construction and occupancy; major hand excavation of holes, trenches, and pits in stream areas; road and bridge construction; disposal of mine tailings and other wastes; signing and fencing to restrict public use; diversion of water; and use of sluice boxes; storage of vehicles; and off highway vehicle use. While none of these activities may involve mechanized earth moving equipment or cutting of trees, they obviously could cause significant surface disturbance. Inability of the Forest Service to regulate such activities could result in significant impacts to NFS lands and resources and would violate the stated purpose of the 36 CFR 228A regulations to minimize adverse effects from mining. Numerous court decisions over the years, including 1981 US v. Weiss; 1989 U.S. v. Doremus; 1986 U.S. v. Brunskill; and 1990 U.S. v. Burnett; had upheld the Forest Service’s authority to apply its regulations in this manner and for this purpose.

In 2003, the judge who issued the Lex decision focused on the wording in one section of the Forest Service’s 1974 regulations and interpreted it in a manner that was directly contrary to how the Forest Service had been historically interpreting its regulation. In summary, the Judge said that based on the words the Forest Service had used in its regulations in 1974, it could not regulate operations which do not involve the use of mechanized earth moving equipment, such as bulldozers and backhoes, or cutting of trees.

As indicated previously, if this 2003 judicial interpretation of the 1974 rule had been allowed to stand, it would have overridden other language in 36 CFR Part 228 Subpart A which required miners to file a plan of operations for significant surface disturbing activities. The Lex court’s interpretation of the Forest Service’s rules conceivably could have allowed construction and operation of mills; deposition of tailings and mine waste; construction and occupation of residencies and buildings; and a long list of other examples, all without Forest Service oversight or bonding. The effect of such a broad exemption would have been contrary to Forest Service statutory authority and obligation to regulate mining on National Forests, and almost certainly would have caused a major adverse public reaction to such unregulated mining activities on public lands.

The judge who wrote the Lex decision was sympathetic with the dilemma his decision placed upon the Forest Service. The court referenced the Forest Service’s continuing authority to write regulations, and suggested that the Forest Service modify the 36 CFR 228 A regulations to fix the situation. Rather than appeal the Lex decision, which was indeed an option, the Forest Service believed the better long term solution was to do as the judge suggested and revise its regulation, which resulted in this final rule. The Forest Service used this situation as an opportunity to clarify its rules and address issues raised in the extensive public comment on the rule.

The June 6, 2005, Federal Register notice with the new rule at 36 CFR 228.4(a) and its Preamble contains several things that miners in general and small operators in particular should take note of:

1.) The Rule has been reorganized to make it flow more logically and to parallel the progression of activities from low impact or no impact to those requiring a plan of operations.

2.) The Preamble acknowledges that there is some confusion about how these regulations apply to “recreational miners”, and that some opponents to suction dredging assert that recreational mining is not legal under the mining law. The Forest Service makes it clear in the Preamble that it does not matter how operations are described, whether as recreational or commercial. As long as the operations are all reasonably incidental to mining, the same rules apply to all miners.

3.) Some members of the public have argued that a plan of operations should be required for any suction dredging operations and some miners have argued that suction dredging should be exempt from a Notice of Intent or a Plan of Operations. The Preamble explains that a “one size fits all” determination cannot be applied to suction dredging, and it must be made on a site-specific basis because of the great variability in circumstances and resource sensitivities on National Forests. Therefore it is possible that in some settings, a suction dredge operation may be exempt (perhaps under 228.4(1)(vi)) from needing a notice of intent or plan of operations and other circumstances where a Plan would be necessary if the operation would likely cause a significant surface disturbance.

4.) The new rule does not change bonding or other enforcement provisions available to the Forest Service against miners. Those remain the same as they have always been.

5.) The Preamble explains these regulations do not preclude or conflict with California State suction dredging permits, and that the state and federal permitting can and should be read together.

6.) The Forest Service has committed in the Preamble to train Forest Service mineral administrators to insure consistent interpretation and application of this new rule. In addition, the Chief of the Forest Service issued separate guidance in November 2004 that all mineral administrators must become trained and certified in the application of these regulations.

7.) The Preamble clarifies that the term “significant” as used in 36 CFR 228A is NOT used in the same way as under the National Environmental Policy Act (NEPA). The Preamble also explains the standard for determining significance under 36 CFR 228A. Any District Ranger’s decision that a proposal “…will likely cause significant disturbance of surface resources…” must be (1.) demonstrably based on past experience, direct evidence, or sound scientific projection; that would (2.) lead the District Ranger to reasonably expect the proposed operation to result in impacts to National Forest System lands that would need to be avoided or mitigated by reclamation, bonding, timing restrictions, or other measures to minimize adverse effects.

8.) The Preamble explains that stream beds in National Forests which have been adjudicated and determined to be navigable when the particular State entered the Union are exempt from Forest Service regulations. All others are subject to Forest Service regulation. Forest Service Regional Offices or the appropriate states should be able to provide a list of those streams.

9.) The Preamble explains that in spite of the original wording in the 1974 rule stating a Notice of Intent must be filed for any disturbance, careful research of the record for the 1974 rule revealed there was never any intent to require Notices of Intent for all activities which might cause a disturbance. The original intent was to require a Notice of Intent for only those operations which might (but are not likely to) cause SIGNIFICANT disturbance to surface resources and thus might require the filing of a Plan of Operations. Therefore, this final rule was changed to include the word “significant” in the context of requiring a Notice of Intent. Only operations; which might cause significant disturbance now require the filing of a Notice of Intent.

The Preamble also emphasizes that a Notice of Intent is not a regulatory instrument, permit, or “mini-plan”. A Notice of Intent is simply a notice the operator provides to the Forest Service to alert them and to help the process along, since it is in both their interests to do so.

10.) The Preamble clarifies that the trigger for a Notice of Intent is an operator’s reasonable uncertainty as to the significance of the disturbance the proposed operations will cause on National Forest System resources. If an operator reasonably concludes operations will not cause significant disturbance of NFS resources, the operator is not required to submit an NOI or POO.

The District Ranger may disagree with this and require a Plan of Operations. However, the Ranger’s decision must be based on past experience, direct evidence, or sound scientific projects that would lead the Ranger to reasonably expect the proposed operation to result in impacts to National Forest System lands that would need to be avoided or mitigated by reclamation, bonding, timing restrictions, or other measures to minimize adverse effects. Under Forest Service appeal regulations, an operator would have the right to challenge this decision.

11.) The new rule clarified and added to the list of activities exempt from filing Notices of Intent or Plans of Operation, including the following:

a.) Under the new rule, vehicle use on existing roads, removal of small mineral samples, marking and monumenting claims, and underground operations which will not cause significant surface resource disturbance, will continue to not require an NOI or POO.

b.) The new rule added specifics to the exemption from filing a Notice of Intent or Plan of Operations at 228.4 (a)(1)(ii). Gold panning, non-motorized hand sluicing, battery operated dry washers, metal detecting, and collecting of mineral specimens using hand tools have been added.

c.) The Preamble clarifies the wording in this exemption about removal of a “reasonable amount of mineral deposit for analysis and study” to mean removal of amounts consistent with commonly accepted standards for taking stream sediment samples such as those listed in the U.S. Bureau of Mines publication, “Standard Procedures for Sampling” (sample size of 200 gms.), and Peter’s “Exploration and Mining Geology” (50 to 100 gms. every 50 to 100 meters). Peters recommendation for hard rock samples is 500 gm. to 2 kg. in size.

d.) The final rule also includes a new exemption to insure that miners are not treated to a different standard than other Forest users. It provides that miners are exempt from filing a Notice of Intent or Plan of Operations when their proposed activities have effects which are not substantially different from other non-mining activities for which no prior permission or authorization is required. If the Forest Service allows activities by other Forest users without requiring a permit, and those activities have the same effects as those conducted by miners, the miners’ activities should be exempted from an NOI or POO as well.

In summary, the discussion in the Preamble is well worth reading since it explains the background and proper interpretation and intent of this new rule.

 
Dave Mack

“Here is some further explaination of the Karuk Tribe Lawsuit against the California DFG to change dredging regulations…”

Hello Everyone,

Here is a short update on the progress of the Karuk lawsuit against the California Department of Fish & Game (DFG):

We have now created a special page for this ongoing situation on our web site. The Karuk complaint against DFG is now up there. I’m sorry that the quality of our copy is not very good.

Under the New 49′er banner, our attorneys filed 2 briefs in the case this past Friday, 16 December. The primary brief is our Motion to Intervene in the litigation.

As I explained last week, we understood that DFG and the Karuks had already worked out a settlement to resolve this litigation — even though they refused to give us a copy.

There was a hearing scheduled this Tuesday (20 December) whereby I believe the plan was to try and get Judge Sabraw to formally endorse the settlement and thereby end the litigation. Our attorneys were present at the hearing pressing for our right to become involved, since it is actually our mining rights on the table. They also pressed the judge to not endorse the settlement between DFG and the Karuks.

Because of our pending Motion to Intervene, Judge Sabraw chose to not adopt the proposed settlement. Instead, she scheduled January 26, 2006 to hear our Intervention Motion and also to hold a hearing on the proposed settlement/joint stipulation for entry of judgment. We have until January 10, 2006 to file an Opposition to the Settlement. Our attorneys are already working on it.

We got in by the skin of out teeth on this one, you guys; just made it! 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!

Please keep thinking up ideas on legal fund-raising, because we are running up a pretty big tab!! We don’t have any other choice!

I hope to post a copy of the Settlement Agreement between DFG and the Karuks real soon. I’m still waiting to receive a copy.

Thanks a lot for being there you guys!!

Keep your chins up,

Dave Mack

 

Nov 232011