SECOND QUARTER, MAY 2005 VOLUME 19, NUMBER 9

 

 

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Legal Fund Needs Replenishment

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

people within the industry.

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

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

2005 Program Approved on Klamath River

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

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

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

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

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

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

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

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

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

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

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

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

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

See you out on the river,

Dave McCracken
General Manager

 

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

 
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 a compilation of some published findings concerning the effects of suction dredging upon water quality…”

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

GEOGRAPHICAL SCALE OF SMALL-SCALE SUCTION DREDGING

It has been observed that environmentalists opposing suction dredging use data gleaned from reports that studied effects of environmental perturbations that are occurring on a system-wide basis. For example, they would characterize the affects of turbidity from a suction dredge as if it would impact downstream organisms in a manner that system-wide high water flow events might. This approach is entirely inconsistent with the way in which suction dredges operate or generally impact their downstream environment.

The California Department of Fish and Game (1997) described typical dredging activities as follows’ “An individual suction dredge operation affects a relatively small portion of a stream or river. A recreational suction dredger (representing 90-percent of all dredgers) may spend a total of four to eight hours per day in the water dredging an area of 1 to 10 square meters. The average number of hours is 5.6 hours per day. The remaining time is spent working on equipment and processing dredged material. The area or length of river or streambed worked by a single suction dredger, as compared to total river length, is relatively small compared to the total available area.”

In the Oregon Siskiyou National Forest Dredge Study, Chapter 4, Environmental Consequences, some perspective is given to small-scale mining. “The average claim size is 20 acres. The total acreage of all analyzed claims related to the total acres of watershed is about 0.2 percent. The average stream width reflected in the analysis is about 20 feet or less and the average mining claim is 1320 feet in length. The percentage of land area within riparian zones on the Siskiyou National Forest occupied by mining claims is estimated to be only 0.1 percent.” The report goes on to say, “Over the past 10 years, approximately 200 suction dredge operators per season operate on the Siskiyou National Forest” (SNF, 2001).

A report from the U.S. Forest Service, Siskiyou National Forest (Cooley, 1995) answered the frequently asked question, “How much material is moved by annual mining suction dredge activities and how much does this figure compare with the natural movement of such materials by surface erosion and mass movement?” The answer was that suction dredges moved a total of 2,413 cubic yards for the season. Cooley (1995) used the most conservative values and estimated that the Siskiyou National Forest would move 331,000 cubic yards of material each year from natural causes. Compared to the 2413 (in-stream) cubic yards re-located by suction mining operations the movement rate by suction dredge mining would equal about 0.7% of natural rates.

It has been suggested that a single operating suction dredge may not pose a problem but the operation of multiple dredges would produce a cumulative effect that could cause harm to aquatic organisms. However, “No additive effects were detected on the Yuba River from 40 active dredges on a 6.8 mile (11 km) stretch. The area most impacted was from the dredge to about 98 feet (30 meters) downstream, for most turbidity and settelable solids (Harvey, B.C., K. McCleneghan, J.D. Linn, and C.L. Langley, 1982). In another study, “Six small dredges (<6 inch dredge nozzle) on a 1.2 mile (2 km) stretch had no additive effect (Harvey, B.C., 1986). Water quality was typically temporally and spatially restricted to the time and immediate vicinity of the dredge (North, P.A., 1993).

A report on the water quality cumulative effects of placer mining on the Chugach National Forest, Alaska found that, “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).

The California Department of Fish and Game stated in its Draft Environmental Impact Report that “Department regulations do not currently limit dredger densities but the activity itself is somewhat self-regulating. Suction dredge operators must space themselves apart from each other to avoid working in the turbidity plume of the next operator working upstream. Suction Dredging requires relatively clear water to successfully harvest gold ” (CDFG, 1997).

ELEVATED TURBIDITY

Suction dredging causes less than significant effects to water quality. The impacts include increased turbidity levels caused by re-suspended streambed sediment and pollution caused by spilling of gas and oil used to operate suction dredges (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).

Because of low ambient levels of turbidity on Butte Creek and the North Fork American River, California, Harvey (1986) easily observed increases of 4 to 5 NTU from suction dredging. Turbidity plumes created by suction dredging in Big East Fork Creek were visible in Canyon Creek 403 feet (123 meters) downstream from the dredges (Somer and Hassler, 1992).

In contrast, 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).

“During a dredging test carried out by the California Department of Fish and Game on the north fork of American River, it was concluded that turbidity was greatest immediately downstream, returning to ambient levels within 100 feet. Referring to 52 dredges studied, Harvey (1982) stated “…generally rapid recovery to control levels in both turbidity and settable solids occurred below dredging activity.”

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.”

The US Geological Survey and the Alaska Department of Natural Resources conducted a survey into dredging on Alaska’s Fortymile River, which is a river designated as a wild and scenic corridor. The study stated, “One dredge had a 10-inch diameter intake hose and was working relatively fine sediment on a smooth but fast section of the river. The other dredge had an 8-inch intake and was working coarser sediments in a shallower reach of the river. State regulations require that suction dredges may not increase the turbidity of the river by more than 5 nephelometric turbidity units (NTU), 500 feet (=150m) downstream. In both cases, the dredges were well within compliance with this regulation.”


http://www.akmining.com/mine/usgs1.htm

Samples were collected on a grid extending downstream from the dredges as they were operating and compared to measurements made upstream of the dredges. One dredge had a 10-inch diameter intake hose and was working relatively fine sediments on a smooth but fast section of the river. The results of the turbidity survey for the 10-inch dredge are shown on figure 2. Turbidity values behind the 8-inch dredge were lower, because the smaller intake was moving less sediment material, and because the coarser sediments being worked by the 8-inch dredge settled more rapidly.

The turbidity values found in the dredge studies fall within the range of turbidity values found for currently mined areas of the Fortymile River and many of its un-mined tributaries. Figure 3 shows the ranges of turbidity values observed along the horizontal axis, and the number of samples that fall within each of those ranges. For example, 25 samples had turbidity between 1.0 and 1.5 NTU, 22 of which were in a dredged area. The highest turbidity value was from an un-mined tributary to Uhler Creek; the lowest from a number of different tributaries to the North Fork. As seen on the figure, there is no appreciable difference in the distribution of turbidity values between mined and un-mined areas.

http://www.akmining.com/mine/usgs1.htm

In American studies, average turbidity levels have been shown to be between 5 and 15 NTU 5 meters below dredges. But even the maximum turbidity level measured in a clay pocket (51 NTU) fell below 10 NTU within 45 meters. Turbidity increases, from even large dredges on moderate sized streams, have shown to be fairly low, usually 25 NTU or less, and to return to background within 30 meters. The impact is localized and short lived; indicating minimum impact on moderate and larger waterways.

Within any waterway, sediment is primarily carried in suspension during periods of rainfall and high flow. This is an important point, as it indicates that a dredging operation has less, or at least no greater effect on sediment mobilization and mobility than a rain storm.”

All of these research studies have concluded that only a local significant effect occurs, with it decreasing rapidly downstream. The studies have been wide spread, having been undertaken in Alaska, Idaho, California, Montana and Oregon.

The science supports de minimus status for < 6-inch suction dredges. Turbidity is de minimus according to the U.S. Army Corps of Engineers.

“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).

Furthermore, individuals that have not, in fact, operated suction dredges may not realize that it is a self-limiting operation. The dredge operator must be able to see his work area to operate safely and manage the intake of the dredge nozzle. If high levels of turbidity were to flood the dredger’s work area and render him “blind” he would have to move the operation to another location.

INCREASING WATER TEMPERATURE

Responsible suction dredge miners do not dredge stream banks (it is illegal). Dredging occurs only in the wetted perimeter of the stream. Therefore, it is unlikely suction dredging will cause a loss of cover adjacent to the stream.

Solar radiation is the single most important energy source for the heating of streams during daytime conditions. The loss or removal of riparian vegetation can increase solar radiation input to a stream increasing stream temperature. Suction dredge operations are confined to the existing stream channel and do not affect riparian vegetation or stream shade (SNF, 2001).

Suction dredging could alter pool dimensions through excavation, deposition of tailings, or by triggering adjustments in channel morphology. Excavating pools could substantially increase their depth and increase cool groundwater inflow. This could reduce pool temperature. If pools were excavated to a depth greater than three feet, salmonid pool habitat could be improved. In addition, if excavated pools reduce pool temperatures, they could provide important coldwater habitats for salmonids living in streams with elevated temperatures (SNF, 2001).

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 states, “There is no evidence that suction dredging affects stream temperature” (SNF, 2001).

Increases in sediment loading to a stream can result in the stream aggrading causing the width of the stream to increase. This width increase can increase the surface area of the water resulting in higher solar radiation absorption and increased stream temperatures. Suction dredge operations are again confined to the existing stream channel and do not affect stream width (SNF, 2001).

Stream temperature can also increase from increasing the stream’s width to depth ratio. The suction dredge operation creates piles in the stream channel as the miner digs down into the streambed. The stream flow may split and flow around the pile decreasing or increasing the wetted surface for a few feet. However, within the stream reach that the miner is working in, the change is so minor that the overall wetted surface area can be assumed to be the same so the total solar radiation absorption remains unchanged. Suction Dredging results in no measurable increase in stream temperature (SNF, 2001).

“Small streams with low flows may be significantly affected by suction dredging, particularly when dredged by larger dredges (Larger than 6 inches) (Stern, 1988). However, the California Department of Fish and Game concluded, “current regulations restrict the maximum nozzle size to 6 inches on most rivers and streams which, in conjunction with riparian habitat protective measures, results in a less than significant impact to channel morphology” (CDFG, 1997).

WATER CHEMISTRY

Concern has been raised that small-scale dredge operations may increase the metal load of the surface waters. Whereas dredge operations do re-suspend the bottom sediment, the magnitude of this disturbance on stream metal loading was unknown. It was unknown what affect the dredge operations may have on the transport and redistribution of metals-some of which (for example, arsenic, copper, and zinc) have environmental importance.

The U.S. Geological Survey and the Alaska Department of Natural Resources cooperated in a project, on Fortymile River, to provide scientific data to address these questions. This river is designated a Wild and Scenic Corridor by the Alaska National Interest Lands Conservation Act. Current users of the river include placer mine operators, as well as boaters and rafters. Along the North Fork Fortymile River, and just below its confluence with the South Fork, mining is limited to a few small suction dredges which, combined, produce as much as a few hundred ounces of gold per year. In this area, some potential environmental concerns have been raised associated with the mining activities, including increased turbidity of the river water; adverse impact on the overall chemical quality of the river water; and potential additions of specific toxic elements, such as arsenic, to the river during mining operations.

Field measurements were made for pH, turbidity, electrical conductivity (a measure of the total dissolved concentrations of mineral salts), and stream discharge for the Fortymile River and many of its tributaries. Samples were collected at the same time for chemical analyses, including trace-metal analyses

Water-quality samples were collected at three points 200 feet behind each of the two operating suction dredges. One sample was collected on either side of the plume, and one in the center of the plume. The samples were passed through a filter with a nominal pore size of 0.45 micrometers and acidified to a pH less than about 2. Results are shown in the following table. Samples 1A, 1C, 2A, and 2C are from either side of the plume behind dredges 1 and 2, respectively. Samples 1B and 2B are from the center of each plume. All concentrations given are in micrograms per liter, except pH, which is expressed in standard units.

The data show similar water-quality values for samples collected within and on either side of the dredge plumes. Further, the values shown in the table are roughly equal to or lower than the regional average concentrations for each dissolved metal, based on the analyses of 25 samples collected throughout the area. Therefore, suction dredging appears to have no measurable effect on the chemistry of the Fortymile River within this study area. We have observed greater variations in the natural stream chemistry in the region than in the dredge areas (Wanty, R.B., B. Wang, and J. Vohden. 1997).

Water Quality Data

A final report from an EPA contract for analysis of the effects on mining in the Fortymile River, Alaska 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).

REMOVAL OF MERCURY FROM THE ENVIRONMENT

Looking for gold in California streams and rivers is a recreational activity for thousands of state residents. As these miners remove sediments, sands, and gravel from streams and former mine sites to separate out the gold, they are also removing mercury. This mercury is the remnant of millions of pounds of pure mercury that was added to sluice boxes used by historic mining operations between 1850 and 1890. Modern day small-scale gold suction dredgers do not use mercury to recover gold during the operation of the dredge. Therefore, any gold that would be found in their possession would be that which was extracted from the stream or river they are working.

Taking mercury out of streams benefits the environment. Efforts to collect mercury from recreational gold miners in the past, however, have been stymied due to perceived regulatory barriers. Disposal of mercury is normally subject to all regulations applicable to hazardous waste.

In 2000, EPA and California’s Division of Toxic Substance Control worked in concert with other State and local agencies to find the regulatory flexibility needed to collect mercury in a simple and effective manner. In August and September, 2000 the first mercury “milk runs” collected 230 pounds of mercury. A Nevada County household waste collection event held in September 2000 collected about 10 pounds of mercury. The total amount of mercury collected was equivalent to the mercury load in 47 years worth of wastewater discharge from the city of Sacramento’s sewage treatment plant or the mercury in a million mercury thermometers. This successful pilot program demonstrates how recreational gold miners and government agencies can work together to protect the environment (US EPA, 2001).

Mercury occurs in several different geochemical forms, including elemental mercury, ionic (or oxidized) mercury, and a suite of organic forms, the most important of which is methylmercury. Methylmercury is the form most readily incorporated into biological tissues and is most toxic to humans. The process of mercury removal by suction dredging does not contaminate the environment because small-scale suction dredging removes elemental mercury. Removal of elemental mercury before it can be converted, by bacteria, to methylmercury is a very important component of environmental and human health protection provided as a secondary benefit of suction dredging.

THE REAL ISSUE

The issue of localized conflict with suction dredgers and other outdoor recreational activities can be put into a more reasonable perspective using the data provided at the beginning of this report. For example, the total acreage of all analyzed claims related to the total acres of watershed is about 0.2 percent. The percentage of land area within riparian zones on the Siskiyou National Forest occupied by mining claims is estimated to be only 0.1 percent.” The report goes on to say, “Over the past 10 years, approximately 200 suction dredge operators per season operate on the Siskiyou National Forest (SNF, 2001).

The issue against suction dredge operations in the streams of the United States appears to be less an issue of environmental protection and more of an issue of certain organized individuals and groups being unwilling to share the outdoors with others without like interests.

Management of the Fortymile River region (a beautiful, wild and scenic river in the remote part of east-central Alaska) and its resources is complex due to the many diverse land-use options. Small-scale, family-owned gold mining has been active on the Fortymile since the “gold rush” days of the late 1880’s. However, in 1980, the Fortymile River and many of its tributaries received Wild and Scenic River status. Because of this status, mining along the river must compete with recreational usage such as rafting, canoeing, and fishing.

A press release from the U. S. Geological Survey stated, in part, the following, “The water quality of the Fortymile River-a beautiful, …has not been adversely impacted by gold placer mining operations according to an integrated study underway by the U.S. Geological Survey and the Alaska Department of Natural Resources.

Violation of mining discharge regulations would close down the small-scale mining operations. No data existed before this study to establish if the mining was degrading the water quality. However, even with the absence of data, environmental groups were active to close down mining on the river citing unsubstantiated possible discharge violations.

This study has found no violations to date to substantiate closure of the small-scale mining operations. The result is a continuance of a way of life on the last American frontier.” (U.S. Geological Survey October 27, 1998). I have no doubt that this is the real issue currently facing small-scale gold suction dredgers in California.

Suction dredges do not add pollution to the aquatic environment. They merely re -suspend and re-locate the bottom materials (overburden) within the river or stream.

I hope this scientific research information I have provided will be helpful in your efforts regarding suction dredge mining and water quality. I thank you for this opportunity to submit this data.

LITERATURE CITED

CDFG, 1997. draft Environmental Impact Report: Adoption of Amended Regulations for Suction Dredge Mining. State of California, The Resource Agency, Department of Fish and Game

Cooley, M.F. 1995. Forest Service yardage Estimate. U.S. Department of Agriculture, U.S. Forest Service, Siskiyou National Forest, Grants Pass, Oregon.

Griffith, J.S. and D.A. Andrews. 1981. Effects of a small suction dredge on fishes and aquatic invertebrates in Idaho streams. North American Journal of Fisheries Management 1:21- 28.

Harvey, B.C., K. McCleneghan, J.D. Linn, and C.L. Langley, 1982. Some physical and biological effects of suction dredge mining. Lab Report No. 82-3. California Department of Fish and Game. Sacramento, CA.

Harvey, B.C. 1986. Effects of suction gold dredging on fish and invertebrates in two California streams. North American Journal of Fisheries Management 6:401-409.

Hassler, T.J., W.L. Somer and G.R. Stern. 1986. Impacts of suction dredge mining on anadromous fish, invertebrates and habitat in Canyon Creek, California. California Cooperative Research Unit, U.S. Fish and Wildlife Service, Humbolt State University. Cooperative Agreement No 14-16-0009-1547.

Huber and Blanchet, 1992. Water quality cumulative effects of placer mining on the Chugach National Forest, Kenai Peninsula, 1988-1990. Chugach National Forest, U.S. Forest Service, Alaska Region, U.S. Department of Agriculture.

Lewis, 1962. Results of Gold Suction Dredge Investigation. Memorandum of September 17, 1962. California Department of Fish and Game, Sacramento, CA. North, P.A., 1993. A review of the regulations and literature regarding the environmental impacts of suction gold dredging. U.S. Environmental Protection Agency, Region 10, Alaska Operations Office. EP 1.2: G 55/993.

Prussian, A.M., T.V. Royer and G.W. Minshall, 1999. Impact of suction dredging on water quality, benthic habitat, and biota in the Fortymile River, Resurrection Creek, and Chatanika River, Alaska, FINAL REPORT. US Environmental Protection Agency, Region 10, Seattle, Washington.

SNF, 2001. Siskiyou National Forest, Draft Environmental Impact Statement: Suction Dredging Activities. U.S. Department of Agriculture, U.S. Forest Service, Siskiyou National Forest, Medford, OR.

Somer, W.L. and T.J. Hassler. 1992. Effects of suction-dredge gold mining on benthic invertebrates in a northern California stream. North American Journal of Fisheries Management 12:244-252

Stern, 1988. Effects of suction dredge mining on anadromous salmonid habitat in Canyon Creek, Trinity County, California. M.S. Thesis, Humbolt State University, Arcata, CA.

Thomas, V.G. 1985. Experimentally determined impacts of a small, suction gold dredge on a Montana stream. North American Journal of Fisheries Management 5:480-488.

US EPA, 2001. Mercury Recovery from Recreational Gold Miners. http://www.epa.gov/region09/cross_pr/innovations/merrec.html

Wanty, R.B., B. Wang, and J. Vohden. 1997. Studies of suction dredge gold-placer mining operations along the Fortymile River, eastern Alaska. U.S. Geological Survey Fact Sheet FS-154-97.